VII.THE ROLE OF THE INTERNATIONAL COMMUNITY ....................................... 28
VIII.CONCLUSION .............................................................................................................. 30
APPENDICES
A. MAP OF PAKISTAN ...........................................................................................................................31
B. GLOSSARY .......................................................................................................................................32
C. ABOUT THE INTERNATIONAL CRISIS GROUP ....................................................................................34
D. CRISIS GROUP REPORTS AND BRIEFINGS ON ASIA SINCE 2007 .........................................................35
E. CRISIS GROUP BOARD OF TRUSTEES ................................................................................................37

Asia Report N°196

6 December 2010

REFORMING PAKISTAN’S CRIMINAL JUSTICE SYSTEM
EXECUTIVE SUMMARY AND RECOMMENDATIONS
The ineffectiveness of Pakistan’s criminal justice system
has serious repercussions for domestic, regional and international security. Given the gravity of internal security challenges, the Pakistan Peoples Party (PPP)-led government
in Islamabad, and the four provincial governments should
make the reform of an anarchic criminal justice sector a
top domestic priority.
The low conviction rate, between 5 and 10 per cent at best,
is unsurprising in a system where investigators are poorly
trained and lack access to basic data and modern investigation tools. Prosecutors, also poorly trained, are not closely
involved in investigations. Corruption, intimidation and
external interference in trials, including by the military’s
intelligence agencies, compromise cases before they even
come to court. Given the absence of scientific evidence
collection methods and credible witness protection programs, police and prosecutors rely mostly on confessions
by the accused, which are inadmissible in court. Militants
and other major criminals are regularly released on bail, or
their trials persist for years even as they plan operations
from prison. Terrorism cases, too, produce few convictions.
The failure of prosecutors to achieve convictions in major
cases, such as the June 2008 Danish embassy bombing, the
September 2008 Marriott Hotel bombing in Islamabad, and
the March 2009 attack on a police academy in Lahore, has
weakened public confidence in the state’s ability to respond
to terrorism. Despite the increasing urgency of reform,
Pakistan’s police, and indeed the whole criminal justice system, still largely functions on the imperative of maintaining public order rather than tackling 21st century crime.
A military-led counter-terrorism effort, defined by haphazard and heavy-handed force against some militant networks,
short-sighted peace deals with others, and continued support to India and Afghanistan-oriented jihadi groups, has
yielded few successes. Instead, the extremist rot has spread
to most of the country. The military’s tactics of long-term
detentions, enforced disappearances and extrajudicial killings provoke public resentment and greater instability,
undermining the fight against violent extremism.

Wresting civilian control over counter-terrorism policy,
a key challenge of the current democratic transition, will
require massive investments in police and prosecutors,
specifically to enhance investigative capacity and case
building. Successes in combating serious crime, including
kidnappings-for-ransom and sectarian terrorism, during
the democratic transition of the 1990s demonstrate that
civilian law enforcement agencies can be effective when
properly authorised and equipped. With the scale of violence far greater today, the government needs all the more
to utilise political and fiscal capital to modernise the criminal justice sector.
Criminal justice cannot, however, be isolated from the
broader challenges of the democratic transition. The repeated suspension of the constitution by military regimes,
followed by extensive reforms to centralise power and to
strengthen their civilian allies, notably the religious right,
have undermined constitutionalism and the rule of law.
General Zia-ul-Haq’s Islamisation of the constitution and
laws during the 1980s altered the basic structure of parliamentary democracy, introduced religious, sectarian and
gender biases into law and made the violation of fundamental rights not just common practice but a matter of
state policy. As a result, Pakistan moved farther and farther away from international standards of justice. The
current parliament has, through the eighteenth constitutional amendment, reversed many of these distortions and
added new provisions that, if implemented, may indeed
strengthen constitutionalism and political stability. More
legal reforms are needed. Discriminatory religious laws
remain in force, and the justice system is still predisposed
towards miscarriage.
In May 2009, the National Judicial (Policy Making) Committee (NJPC), headed by the Supreme Court chief justice, produced the National Judicial Policy (NJP) 2009 to
make the justice system more responsive to citizen needs.
The policy applies enormous pressures on civil and criminal courts to resolve cases within a fixed timeframe. However, with a lopsided emphasis on speedier delivery, the
NJP has failed to address critical weaknesses in the judiciary, including the criminal justice system. An already
low conviction rate could decline even further. While

slow delivery remains a critical problem, policymakers
should avoid resorting to quick fixes and procedural shortcuts such as parallel court systems and informal dispute
resolution mechanisms. Such measures, including antiterrorism courts, have failed to produce the desired results,
and have also undermined the quality of justice. An enhanced and reformed criminal justice sector remains the
best and only sustainable option.
International allies, particularly the U.S. and the EU,
should allocate the necessary resources to make Pakistan
a strong criminal justice partner. A lopsided partnership
with Pakistan’s military has yielded few sustainable counterterrorism successes. Al-Qaeda affiliated jihadi groups
continue to operate in the Pakistani heartland, undermining the country’s security and the security of its neighbours
and the international community more broadly. The international community must shift the focus of security assistance to the civilian law enforcement agencies, which
would yield long-term counter-terrorism dividends.

Page ii

5.

a) ensuring that prison facilities are fully resourced,
including with enough vehicles to transport prisoners to court on the designated dates;
b) ensuring that they are taken to court on the dates
of their hearings;
c) taking action against jail authorities who assign
labour to remand prisoners, prohibited by law; and
d) providing free legal aid to remand prisoners who
cannot afford counsel.
6.

Initiate a broad dialogue with stakeholders, including
serving and retired senior police officials, jurists,
criminologists, NGOs and other civil society groups
to assess the strengths and weaknesses of the original
Police Order (2002), and produce fresh bills in each
legislature to strengthen law enforcement that have
public support and political sanction.

7.

Develop mechanisms for individual police stations to
articulate resource needs and for these to be reflected
in provincial police budgeting processes.

8.

Carry out a comprehensive assessment of the gaps in
investigation and prosecution, based on analyses of
crime patterns, with the goal of identifying personnel,
training and resource needs at the national, provincial
and district levels; invest in producing cadres of specialists within investigation branches and agencies, in
such fields as kidnapping, homicide, counter-terrorism
and cyber-crime.

9.

Engage the public as an effective partner in policing
by establishing and empowering neighbourhood committees, citizen-police liaison committees and public
safety commissions at the national, provincial and district level to oversee critical aspects of policing and
by ensuring that police have adequate resources and
operational independence.

RECOMMENDATIONS
To the Federal Government of Pakistan and
Provincial Governments:
1.

Repeal all laws that discriminate on the basis of religion, sect or gender, including the blasphemy laws,
anti-Ahmadi laws and Hudood Ordinances.

2.

Amend the 1997 Anti-Terrorism Act to refine its definition of terrorism to include only those acts that are
large in scale and intend to create a sense of fear and
insecurity among segments of the public; and disband
anti-terrorism courts (ATCs) and try terrorism cases
in regular courts.

3.

4.

Amend the Criminal Procedure Code to establish a
robust witness protection program, and make the protection of witnesses, investigators, prosecutors and
judges in major criminal cases, particularly terrorism
cases, a priority.
Address over-crowding in prisons by:
a) enforcing existing bail laws;
b) holding to account any trial judge failing to set
bail where required by law;
c) passing a new law requiring judges to allow bail
unless there are reasonable grounds to believe the
prisoner would abscond or commit further offences;
and
d) reforming the sentencing structure for non-violent
petty crimes to include alternatives to imprisonment such as fines, probation and treatment.

Guarantee the rights of all prisoners under remand by:

10. Strengthen the police’s investigative capacity by:
a) computerising and maintaining centralised, serviceable records of all FIRs;
b) amending the Telegraph Act to establish clear protocols for investigators’ access to mobile phone
data, and ensuring that this access is not undermined by the military’s intelligence agencies;
c) amending the Evidence Act to require investigators
to incorporate scientific methods and data in investigations;
d) modernising the police force by enhancing scientific evidence collection, including DNA analysis,
automated fingerprinting identification systems,
and forensics, with particular emphasis on the provincial and district levels; prioritising completion

of forensics science laboratories in Islamabad, in
the case of the federal government, and Lahore,
in the case of the provincial Punjab government;
and allocating resources for similar laboratories
in Sindh and Khyber Pakhtunkhwa provinces;
e) bringing the national forensics science laboratory
under the Federal Investigation Agency, and the
provincial laboratories under the respective criminal investigation departments, while guaranteeing
operational independence and oversight;
f) appointing highly qualified scientists to head the
forensics science laboratories, and making recruitment open to the private sector, with competitive
salaries; and
g) requiring all potential candidates to the investigation
branches to first serve as understudies to senior investigators; recruiting those who show potential;
requiring them to undergo specialised training in
specific fields such as homicide, counter-terrorism,
cyber-crime and counter-narcotics; and providing
regular refresher training, including through foreign exposure.
11. Prevent external interference in investigations by:
a) requiring the approval of the relevant public safety
commission before an investigating officer in an
ongoing investigation can be replaced; and
b) publicising instances of military interference in
investigations, including pressure on the police to
surrender prisoners to the military’s intelligence
agencies, and raise such cases with the higher
judiciary.
12. Strengthen the criminal prosecution services and
police-prosecutor coordination by:
a) raising police and prosecutors’ salaries;
b) providing security of tenure to prosecutors, empowering them to reject weak cases, as well as
specialised training in such fields as homicide and
counter-terrorism, and integrating it with related
police training programs;
c) mandating joint police-prosecutor committees to
oversee investigations; and
d) establishing a committee within each prosecution
service, headed by the prosecutor general and comprising respected jurists, to examine the number
of cases an individual prosecutor prosecutes, reasons for trial delays, and the number of convictions and acquittals, including identifying causes
for acquittals.

Page iii

13. Disband all state-supported lashkars (militias) and
take action against any individuals or groups pursuing vigilante justice, including against alleged militants.
14. Commit to impartial justice and end all deviations
from the rule of law and constitutionalism by:
a) repealing parallel courts systems such as qazi
(Sharia), National Accountability Bureau and antiterrorism courts;
b) repealing all laws that discriminate on the basis
on religion, sect and gender, including the blasphemy and anti-Ahmadi laws and the Hudood
Ordinances; and
c) prosecuting any civilian or military officials responsible for enforced disappearances, extrajudicial killings and other human rights violations.

To Pakistan’s Higher Judiciary:
15. Shift the focus of the National Judicial Policy from
short-term solutions for speedier delivery towards establishing a justice system that tackles the primary
threats to internal stability and instills public confidence in the state.
16. Circumscribe the doctrine of the constitution’s basic
features by limiting it to amendments that negate the
spirit of parliamentary democracy, judicial independence and federalism, and remove reference to Islamic
provisions, given their vagueness.
17. Respect the separation of powers enshrined in the
constitution by:
a) limiting the Supreme Court’s use of suo motu
powers to extreme cases of fundamental rights
violations;
b) strictly interpreting Article 184 of the constitution
to provide a clear definition of “public interest”
that would prevent its broad use or abuse; and
c) prohibiting the provincial high courts from taking
suo motu action, in accordance with the constitution.
18. Strike down all laws that discriminate on the basis of
religion, sect and gender, as unconstitutional, if the
government fails to repeal them.

To the International Community, particularly
the United States and the European Union:
19. Make Pakistan a strong criminal justice partner by
shifting the focus of security assistance to civilian
law enforcement agencies and criminal prosecution.

20. Support the modernisation and enhance the counterterrorism capacity of the police and civilian security
agencies, including by training investigators in modern methods of evidence collection, equipping forensic laboratories and assisting the computerisation of
police records.
21. Send unambiguous signals to the military that illegal
detentions, extrajudicial killings and other human
rights violations in the name of counter-terrorism are
unacceptable, by conditioning military aid on credible efforts by the military leadership to hold any
military and intelligence officers and officials found
committing such acts to account.

Islamabad/Brussels, 6 December 2010

Page iv

Asia Report N°196

6 December 2010

REFORMING PAKISTAN’S CRIMINAL JUSTICE SYSTEM
I. INTRODUCTION
In 2009, Pakistan was worse hit by terrorist violence than
in any previous year, with civilian casualties outpacing
those in Iraq and Afghanistan, with this pattern continuing in 2010. Indeed the enormity of the problem is the direct consequence of the criminal justice system’s failure
to pre-empt, investigate and convict militants.1 A significant number of militant attacks have targeted civilian law
enforcement agencies. Although they are the frontline of
the fight against terrorism, these civilian agencies remain
too under-resourced to counter such attacks and to bring
militant groups to justice. Terrorist violence is not confined
to the north-western tribal belt bordering Afghanistan. It
is rampant in urban centres such as the federal capital
Islamabad, Karachi, Quetta and Lahore and other major cities, particularly in the most populous province, Punjab.2
Police investigations are undermined by the absence of
professional autonomy, poor training and reliance on blunt
investigative tools. In 2002, then-President Pervez Musharraf promulgated the Police Order 2002 to transform an
ineffective, brutal and politicised force into an efficient,
service-oriented one. Drafted with the input of many senior
police officials, the ordinance could have made the police
a more autonomous and accountable institution. However,
the military regime’s extensive amendments in 2004 diluted
1

For earlier Crisis Group analysis on the rule of law sector, see
Crisis Group Asia Reports N°160, Reforming the Judiciary in
Pakistan, 16 October 2008; N°117, Reforming Pakistan’s Police, 14 July 2008; and N°86, Building Judicial Independence
in Pakistan, 10 November 2004.
2
According to the Pakistan Institute for Peace Studies (PIPS),
in September 2010 alone there were 297 people killed and more
than 700 injured in terrorist and insurgent attacks, and another
51 people killed in political violence. Pakistan Security Report
(September 2010), PIPS, 11 October 2010. More than 3,000
people were killed in terrorist attacks in 2009. For Crisis Group
analysis of Islamist militancy in Pakistan, see Asia Reports
N°178, Pakistan: Countering Militancy in FATA, 21 October
2009; N°164, Pakistan: The Militant Jihadi Challenge, 13 March
2009; N°125, Pakistan Tribal Areas: Appeasing the Militants,
11 December 2006; N°95, The State of Sectarianism in Pakistan, 18 April 2005; N°73, Unfulfilled Promises: Pakistan’s
Failure to Tackle Extremism, 16 January 2004; and N°49,
Pakistan: The Mullahs and the Military, 20 March 2003.

many of the provisions for internal and community oversight and limited operational and political independence.3
The Police Order 2002 had also separated the prosecution
branch from the police, a necessary but still unfinished
step. Eight years later, prosecution services remain underresourced and the same factors that impede the police’s
independence, including political interference and corruption, result in weak cases that fail to hold up in court.
With the constitutional cover for the Police Order 2002
now lapsing, provincial governments, who are responsible
for law and order, must pass legislation to enable the
police to tackle Pakistan’s multiple internal security challenges. Any reform process must, however, prioritise police and prosecutors’ capacity to build strong cases that lead
to convictions against militant groups and other criminal
networks.
Since the rule of law is central to Pakistan’s democratic
transition, an effective criminal justice system is essential.
The failings of the civil or criminal court system have
forced many citizens to rely on informal dispute resolution mechanisms that are quicker and less cumbersome.
This dangerous trend undermines state authority and the
quality of justice. There is urgent need for reforms that
reconcile demands for timely justice with effective prosecution. The eighteenth constitutional amendment, passed
unanimously by both houses of parliament in April 2010,
includes many positive measures to enhance judicial independence, protect democracy and buttress fundamental
rights, including the right to “a fair trial and due process”.4
But these constitutional changes alone will not rebuild a
deteriorating justice sector where conviction rates are between 5 to 10 per cent, prisons are overcrowded and the
capacity of courts sorely stretched by backlogs.
Many domestic and international stakeholders see putting
terrorists through the regular justice system as a losing bet.
The alternatives, however, are counter-productive. The
military continues to dominate counter-terrorism strategy
but has delivered few sustainable successes in the last nine

3

See Crisis Group Report, Reforming Pakistan’s Police, op. cit.
Text of the Eighteenth Amendment to the Constitution at
www.pak.gov.pk/Constitution/Full%20text%20of%2018th%
20Amendment%20Bill.pdf.
4

years. In fact, military operations in Khyber Pakhtunkhwa
(KPK) province and the Federally Administered Tribal
Areas (FATA) create public resentment, and more importantly, fail to address militancy in the Pakistani heartland.
Law enforcement agencies, currently prime targets for terrorist groups, should be the front line in the state’s fight
against violent extremism. The government must build
their physical capacity to repel attacks, and even more their
ability to curb the growing criminality that allows militancy to flourish. This will require a comprehensive policy
that builds on past law enforcement successes, modernises civilian law enforcement agencies and incorporates
prosecutors and the courts. This report, based on extensive interviews with retired and serving police officials,
prosecutors, judges and criminal lawyers in Islamabad,
Lahore, Karachi and Peshawar identifies critical gaps in the
criminal justice system and proposes reforms to strengthen
investigations and prosecutions, so that fair trials becomes
a viable and indeed the first option to counter criminality
and, by extension, radical extremism.

Page 2

II. RULE OF LAW AND THE LEGACY
OF MILITARY RULE
The legal framework for criminal trials is provided in three
bodies of law, inherited from the British colonial regime:
substantive law is contained in the Pakistan Penal Code
(PPC) of 1860; principles and procedures for evidence in
the Evidence Act of 1872 (amended and renamed Qanune-Shahadat in 1984); and criminal procedures for registration, investigation and trial in the Criminal Procedure Code
(CrPC) of 1898. Parts of the country are excluded from
the procedures and protections of these texts as well as the
constitution as a result of parallel legal frameworks. These
include the Frontier Crimes Regulation (FCR), 1901, that
applies to FATA,5 and the Nizam-e-Adl 2009 that imposes Sharia (Islamic law) in the Provincially Administered Tribal Areas (PATA) of KPK province.6 There are
also numerous special laws, including the Anti-Terrorism
Act (ATA) 1997, the National Accountability Ordinance
(NAB), and the Hudood Ordinances, discussed in more
detail below.
Except for some amendments by military regimes, the PPC,
CrPC and Evidence Act have been largely untouched since
independence. Even where there have been major reforms,
these have been largely regressive since military regimes
have amended these laws to legitimise their rule and sideline their civilian opponents. Indeed, political and constitutional distortions are largely responsible for the breakdown of the rule of law. General Zia-ul-Haq’s Islamisation
program during the 1980s, in particular, fundamentally
distorted the justice system, degrading legal standards and
introducing religious, sectarian and gender biases. The
violation of basic rights became a matter of state policy.

FATA comprises seven administrative units, or tribal agencies, including South Waziristan, North Waziristan, Kurram,
Khyber, Orakzai, Mohmand and Bajaur; and four Frontier Regions adjoining the districts of Peshawar, Kohat, Dera Ismail
Khan and Bannu. For analysis of FATA’s legal, administrative
and political structure, and its impact on conflict, see Crisis
Group Reports, Pakistan: Countering Militancy in FATA; and
Pakistan Tribal Areas: Appeasing the Militants, both op. cit.
6
PATA comprises districts of the former Malakand Division,
including Buner, Chitral, Lower Dir, Upper Dir, Malakand,
Shangla and Swat. On the Nizam-e-Adl’s impact on peace and
security in PATA, see Crisis Group Asia Briefing N°111, Pakistan: The Worsening IDP Crisis, 16 September 2010.

and extra-marital sex (fornication). Penalties include amputation of limbs, flogging, stoning to death and other
forms of capital punishment.7 In 1980, the military regime
established the Federal Shariat Court to ensure all legislation conformed to Islamic injunctions and to exercise
appellate power in Hudood cases. Zia’s blasphemy and
anti-Ahmadi8 laws, which carry a mandatory death penalty, still provide legal cover to the persecution of religious and sectarian minorities.9 The Qisas (retribution)
and Diyat (blood money) law allows the relatives of a
murder victim to pardon the killer in return for monetary
compensation, in effect providing cover for “honour killings” and enabling murder cases to be settled out of court.
While the harshest penalties like stoning and amputation
have never been carried out, the laws to which they apply
are not dead but continue to be used.10

The eighth constitutional amendment, passed by a rubber
stamp parliament in 1985, adopted and provided constitutional cover for these and other ordinances. Failing to
uphold the fundamental rights contained in the 1973 constitution, the judiciary validated the eighth amendment.
“As a result”, said an Islamabad-based senior advocate,
“you have a marked shift from international and common
law standards”.13 The eighth amendment also gave the
indirectly elected president authority to dismiss elected
governments, a power that was used to destabilise the
democratic transition of the 1990s, with four parliaments
dismissed before it was repealed in 1997 through the thirteenth constitutional amendment, passed by the ruling
Pakistan Muslim League-Nawaz (PML-N) with the support of its PPP (Pakistan Peoples Party) parliamentary
opposition.

Zia’s regime also altered the Evidence Act, giving it the
Islamic name of Qanun-e-Shahadat in 1984. Offences,
including theft and rape, which became punishable under
Islamic jurisprudence, now require a much stricter level
of evidence. Courts must decide the competence of witnesses on the basis of their Islamic character: only those
refraining from sin can testify.11 In Hudood cases, two
women witnesses are required to provide testimony equal
to a man’s, and women need four witnesses to prove rape.
Women who fail to prove rape by this standard were
often charged with extra-marital fornication, also punishable by death, until the Women Protection Act of 2006
separated rape and fornication, returning the former offence
to the PPC.12

Zia’s Islamisation program was accompanied by patronage to radical Sunni outfits for the twin purpose of fighting
the U.S.-supported anti-Soviet jihad in Afghanistan and
promoting ultra-orthodox interpretations of Sunni Islam
at home. With state support, groups like the Sipah-eSahaba Pakistan (SSP) and its later offshoot, the Lashkare-Jhangvi (LJ), established headquarters primarily in Punjab. Their countrywide network of mosques and madrasas
(religious seminaries) remain major centres of jihadi recruitment. During the democratic interlude of the 1990s,
the military continued to use Sunni jihadi proxies such as
the Lashkar-e-Tayyaba in India-administered Kashmir
and in support of the Taliban in Afghanistan.14 As these
groups proliferated countrywide, the state’s ability to enforce law and order declined.

7

With Zia’s Third Amendment Order of 1980, Article 227 of
the constitution stipulated: “All existing laws shall be brought
in conformity with the Injunctions of Islam as laid down in the
Holy Quran and Sunnah, in this Part referred to as the Injunctions of Islam, and no law shall be enacted which is repugnant
to such Injunctions”. See Crisis Group Report, Reforming the
Judiciary in Pakistan, op. cit. See also Rubya Mehdi, The
Islamization of the Law in Pakistan (Richmond, 1994).
8
Ahmadis are a minority Sunni sect, declared non-Muslims by
the second constitutional amendment (1974).
9
In November 2010, a Christian woman was sentenced to death
for blasphemy by a district court, the country’s first such sentence for a woman.
10
See Crisis Group Reports, Reforming the Judiciary in Pakistan, and The State of Sectarianism in Pakistan, both op. cit.
11
Another Zia-era amendment to the constitution, under Article
62, requires that a candidate for election to parliament must be
“of good character and is not commonly known as one who
violates Islamic Injunctions”; have “adequate knowledge of Islamic teachings and practises obligatory duties prescribed by
Islam as well as abstains from major sins”; and be “sagacious,
righteous and non-profligate and honest and amen [faithful]”.
12
See Crisis Group Report, Reforming the Judiciary in Pakistan, op. cit.

B. MUSHARRAF’S SEVENTEENTH
AMENDMENT
Ousting Nawaz Sharif’s government through a coup in
October 1999, Musharraf’s military regime further eroded
the rule of law and the capacity of state organs and institutions like the police and the judiciary. Like Zia, Musharraf purged the superior courts of independent-minded
judges, requiring all justices to swear a fresh oath to his
Provisional Constitution Order (PCO). His regime’s subsequent reforms served three broad purposes: to provide
cover for the October 1999 coup; to ensure electoral victories for Musharraf’s civilian allies in local, provincial
and national elections; and to exempt him from legal and
constitutional limits. As with Zia’s reforms, the result was
a sharp deviation from the letter and spirit of the constitu-

13

Crisis Group interview, Islamabad, 22 April 2010.
See Crisis Group Reports, Pakistan: The Militant Jihadi
Challenge; The State of Sectarianism in Pakistan; Unfulfilled
Promises: Pakistan’s Failure to Tackle Extremism; and Pakistan: The Mullahs and the Military, all op. cit.
14

tion. Even as Musharraf pledged to crack down on homegrown militant groups following 11 September 2001, the
military regime continued to patronise India and Afghanistan-oriented jihadi groups, including the LeT15 and Afghan insurgent groups including Mullah Omar’s Quetta
Shura and the Haqqani network. New groups were also
created, such as the Jaish-e-Mohammad, formed in 2000
with the support of the military’s intelligence agencies.16
Musharraf also passed a number of ordinances ahead of
the 2002 general elections to bolster military-backed
political parties – primarily the Pakistan Muslim LeagueQuaid-e-Azam (PML-Q) and the six-party religious rightwing alliance, the Muttahida Majlis-e-Amal (MMA) –
and to sideline his moderate opposition, including Benazir Bhutto’s PPP and Nawaz Sharif’s PML-N. In July
2002, the military government issued the Qualification to
Hold Public Offices Order 2002, which established a twoterm limit on prime ministers, an anomaly among parliamentary democracies, to prevent Bhutto and Sharif from
returning to office.17 The following month, it enacted the
Legal Framework Order (LFO), a set of amendments that
institutionalised the military’s political dominance, tilting
power from the prime minister, the head of government,
to the president, the indirectly elected titular head of state,
and restoring the presidential power to dismiss elected
parliaments. These changes were later enshrined in the
seventeenth constitutional amendment.18
The LFO placed restrictions on joining or forming a political party, based on the dubious justification of maintaining “public order”. The Conduct of General Elections
Order 2002 contained a clause requiring a bachelor’s degree or its equivalent for anyone seeking elected office,
disenfranchising the vast majority of Pakistanis and disqualifying scores of opposition political party leaders and
officers, including those from the PPP and PML-N. The
military regime, however, recognised madrasa degrees,
allowing many MMA members without bachelor degrees
to contest elections.19 In response, many candidates sought

15

Renamed the Jamaat-ud-Dawa, after Musharraf banned the
organisation under U.S. pressure following the attack on the
Indian parliament in 2001, the LeT/JD was responsible for the
November 2008 attacks in Mumbai.
16
See Crisis Group Report, Unfulfilled Promises: Pakistan’s
Failure to Tackle Extremism, op. cit.
17
Chief Executive’s Order, No. 24 of 2002, 21 August 2002.
18
Nullifying the thirteenth constitutional amendment, the seventeenth amendment granted the president the power to dismiss
the National Assembly, appoint service chiefs, approve superior court appointments; it gave similar powers to provincial
governors, appointed by the president, over provincial parliaments. See Crisis Group Asia Report N°40, Pakistan: Transition to Democracy?, 3 October 2002.
19
In a resolution on the 2002 elections, the European Parliament declared that it: “Deplores the introduction of arbitrary

Page 4

fake degrees in order to contest the 2002 and 2008 elections. In 2010, the Supreme Court called for investigations by the election commission into fake degrees, resulting in the disqualification of several legislators under
what remains a highly flawed and unconstitutional law.
The seventeenth constitutional amendment passed by the
PML-Q-led parliament – with crucial support from the
rightwing religious parties – validated the military’s legal
distortions and prevented them from being “called (into)
question by any court or forum on any ground whatsoever”.20 To reward his religious allies, Musharraf allowed
the MMA-led government in then Northwest Frontier
Province (NWFP) to pass a radical Hisba Bill to Islamise
the province, including the establishment of a mohtasib
(ombudsman) empowered to regulate the morality and
religious conduct of citizens.
As it did with Zia’s eighth amendment, the Supreme Court
rejected challenges to the seventeenth amendment. By
repeatedly validating ad hoc changes to the law to either
exempt military regimes from legal and constitutional
limits, or to tilt the political playing field in favour of
their preferred political parties, the judiciary failed to enforce the constitution as the highest law of the land. The
incumbent parliament, therefore, inherited a chaotic legal
and constitutional legacy. Some of the damage has been
reversed. However, many of Musharraf’s regressive institutional reforms remain in force. These continue to impede
the government’s ability to stabilise a fragile democratic
transition, guarantee constitutional rule and enforce the
law. Two reform packages merit particular focus: the
National Accountability Bureau (NAB) Ordinance and
the Police Order 2002.

1. The National Accountability Bureau (NAB)
Ordinance
The NAB Ordinance was one of the first and most farreaching of Musharraf’s reforms. Ostensibly promulgated
to curtail official corruption and hold politicians and officials accountable, in reality, it was a political tool used to
break the military’s opposition. The ordinance transferred
authority over corruption investigations from the Federal
criteria for nomination, particularly the requirement to have a
BA degree, which deprive 96 per cent of Pakistani citizens (including 41 per cent of existing legislators) of the right to run for
office, thereby diluting the representative nature of democracy
in Pakistan”. Text of the European Parliament Resolution on
Pakistan Election, 21 November 2002. At www.europarl.
eu.int/. See also Ashraf Mumtaz, “Graduation: record number
of politicians out”, Dawn, 19 July 2005; and Massoud Ansari,
“A foregone conclusion?”, Newsline, October 2002.
20
Text of the Seventeenth Amendment to the Constitution,
available at http://pakistani.org/pakistan/constitution/
amendments/17amendment.html.

Investigation Agency (FIA) to the newly created National
Accountability Bureau (NAB) although the FIA, notwithstanding its limited resources, is better equipped to investigate corruption.21
The NAB chairman is a quasi-judicial office, undermining the separation of judicial and executive powers. The
NAB Ordinance also undermines three basic principles
of justice by being retroactive; shifting the burden of
evidence to the accused; and turning breach of contract,
a civil matter, into a criminal offence. Applicable retroactively to 1985, the ordinance introduced a new criminal
offence of “wilful default”, not originally part of the penal code or the anti-corruption act, thus violating a constitutional ban on retroactive crime.22 A senior NAB
prosecutor, who said he joined because he believed that
corruption was a major problem, argued: “The menace of
corruption needs to be curbed to keep our society intact,
but that does not justify unconstitutional measures”.23
Section 19 of the NAB law empowers it to seek information from and therefore compelling the accused to act as
a witness against himself, in violation of the CrPC and
Evidence Act. The rationale for shifting the burden of
evidence to the accused was based on the difficulty of
proving white collar crimes since offenders can cover their
tracks through intermediaries and indirect transactions.
Defenders of the law argue that the procedure allows the
accused to account for his or her assets, and that money
laundering laws in other countries, including European
states, similarly place the burden of proof on the accused.
Some believe the Evidence Act and the CrPC imposes too

21

According to a senior NAB official, NAB prosecutors often
lack the necessary training. During the Musharraf regime, moreover, NAB teams were frequently headed by a military official
with no knowledge of the CrPC, the Evidence Act, or how to
record evidence, including entering investigation reports and
other related documents into evidence. Crisis Group interview,
NAB prosecutor, Karachi, June 2010. See also Tariq Butt,
“Shortage of prosecutors impedes NAB work”, The News, 12
April 2010.
22
Article 12 of the constitution guarantees that “no law shall
authorise the punishment of a person: a) for an act or omission
that was not punishable by law at the time of the act or omission;
or b) for an offence by a penalty greater than, or of a kind different from, the penalty prescribed by law for that offence at the
time the offence was committed”. Hearing challenges to the NAB
ordinance on these grounds, the Supreme Court ordered numerous changes. To establish “wilful default”, the amended law
requires banks to issue a 30-day notice to the borrower to repay
a loan; if the party still fails to repay, the bank refers the case to
the State Bank of Pakistan, which scrutinises the case and then
issues a seven-day notice to the borrower. If the loan is still not
settled, the State Bank refers the case to the NAB, converting it
into a criminal liability. Lawyers criticise the process. Crisis
Group interview, NAB official, Karachi, June 2010.
23
Crisis Group interview, Karachi, June 2010.

Page 5

strict a standard on police and prosecutors. Indeed a former NAB prosecutor argued: “If we go by the Qanun-eShahadat, it is virtually impossible to prove anything beyond a shadow of doubt”.24 However, merely shifting the
burden of proof to the accused is a legal shortcut to evade
the enormous gaps in the justice system. The flaws in investigation and prosecution are far deeper than a simple
procedural change could address.
The NAB law has major implications not only for constitutional rule but also for long-term political stability since
many elected parliamentarians in the current dispensation, including cabinet ministers, are still under investigation by this bureau. While elected representatives should
be held accountable for any misdeeds, the accountability
process should not violate the letter and spirit of the constitution. Nor should the process be guided by a militarycreated organ that was not designed to seek justice but to
suppress political opposition.25

2. The Police Order 2002
Musharraf promulgated the 2002 Police Order as part of
his restructuring of the local government system.26 The

24

Crisis Group interview, Islamabad, April 2010.
The Musharraf-backed PML-Q was largely forged through
defections from the PPP and PML-N, obtained by threats of
NAB charges and promises of lucrative ministries. A PML-Q
central working committee member said: “The process [of engineering a defection] is to file corruption charges with the
NAB, offer to drop the charges and, in some cases, offer an attractive ministry, if the person comes on board”. Quoted in Crisis Group Asia Report N°102, Authoritarianism and Political
Party Reform, 28 September 2005. With the PML-Q failing to
win a majority in the 2002 elections, the military regime suspended a constitutional bar on floor-crossing in parliament, and
used the same carrot-and-stick approach to achieve defections
of ten PPP parliamentarians to the PML-Q-led coalition. NAB
had charged one of these parliamentarians, Faisal Saleh Hayat,
for defaulting on a loan; after defecting to the PML-Q, he was
appointed interior minister. Another former PPP leader, Aftab
Sherpao – also charged with corruption – was allowed to return
to the country after agreeing to join the PML-Q-led government. He was appointed water and power minister, and later
succeeded Hayat as interior minister. See ibid.
26
In 2001, the newly created National Reconstruction Bureau
(NRB), headed by a retired lieutenant general, devised a Devolution of Power Plan that established three tiers of local government at the district, tehsil (sub-district) and union council
levels. The plan delegated administrative and development
powers to locally elected officials. Constitutional protection to
the Local Bodies Act lapsed on 31 December 2009, restoring
provincial authority over legislation on local government. All
four provincial assemblies dissolved Musharraf’s local government system, and are considering new legislation to replace
it. For detailed analysis on the plan, see Crisis Group Asia Report N°77, Devolution in Pakistan: Reform or Regression?, 22
25

ordinance envisioned making the police an efficient service-oriented and accountable force. In 2004, the president extensively amended the order, diluting earlier provisions that ensured greater operational independence,
accountability and civilian oversight. The military regime
also used the police against its political opposition,27 even
as it deprived the force of the technical, administrative and
fiscal resources it needed to combat crime and maintain
internal security. As a result, crime rates, unsolved cases
and police excesses, including illegal detention, torture
and extrajudicial killings, continued to rise.28 Public safety
commissions and a police accountability authority, the
cornerstones of civilian oversight and police accountability in the Police Order 2002, were diluted through later
amendments and never properly formed or authorised;
corruption, cronyism and political interference in the police
continued as before.29
The Police Order 2002 also created a separate hierarchy
for investigations, requiring cases to be registered at the
police station, but then investigated by a separate wing
outside the station. Whereas previously the station house
officer (SHO), who oversees all functions of a police station, was ultimately responsible for an investigation, the
new order sought to limit the SHO’s powers – seen as a
major source of corruption in police stations – by placing
investigations beyond the effective control of either the
SHO or the district police officer (DPO). Accountability
began only at the level of the additional inspector general
(AIG).30 “This model is not present in any democratic

March 2004; and Asia Briefing N°43, Pakistan’s Local Polls:
Shoring Up Military Rule, 22 November 2005.
27
For example, during nationwide protests against Musharraf’s
decision to sack Supreme Court Chief Justice Iftikhar Mohammad Chaudhry in March 2007, and during the imposition of
emergency rule from 3 November-16 December 2007, the police brutally attacked demonstrators. See Crisis Group Report,
Reforming Pakistan’s Police, op. cit.; and Crisis Group Asia
Briefing N°70, Winding Back Martial Law, 12 November 2007.
28
See, for example, Waqar Gillani, “Force to serve”, The News,
27 February 2010.
29
The Police Order 2002 also merged police complaint cells
with public safety commissions. An informed observer argued:
“The police complaint authority is a full-time job. They need
their own investigations. The public safety commissions are the
think-tanks. It was a disaster to merge them”. Crisis Group interview, Jamil Yusuf, former head, Citizen Police Liaison Committee (CPLC), Karachi, 15 June 2010. The CPLC was established in Karachi in 1989 as a non-political statutory body to
improve citizen-police cooperation. It is operationally independent and managed by citizens on a voluntary basis.
30
Under the Police Act of 1861, the inspector general (IG)
heads the police force in a province, with deputy inspectors
general (DIGs) and additional inspectors general (AIGs) serving directly under him and supervising specific police functions. A superintendent (SP) heads the force in districts, with a
senior superintendent (SSP) leading larger districts and provin-

Page 6

country in the world”, said Shaukat Javed, a former Punjab inspector general (IG), the highest office in the provincial police hierarchy. “Serious and heinous crimes like
gangs, kidnapping, serial rapes and homicides, and terrorism should be dealt with by a specialised staff at the district or sub-division level but 90 per cent of crime should
be investigated at the level of the police station”.31
To be sure, police stations need separate investigation
branches, rather than concentrating all powers in the SHO
and giving investigators vague and overlapping mandates
that include other responsibilities such as watch and ward
and protection to VIPs. But these investigation branches
should not be separated from the police station. “The SHO
should be involved in providing vital information and intelligence on his area – where are the drug dens, the rackets, the gangs?” said Jamil Yusuf, the former head of the
Karachi-based Citizen Police Liaison Committee (CPLC).
“The head of investigation needs to be in the same place
as the SHO”.32
Although policing is a provincial subject under the constitution, the Police Order 2002 was placed under the sixth
schedule of the constitution, requiring presidential assent
for amendments. That protection lapsed on 31 December
2009. Provincial governments can now replace this with a
new bill. The Punjab government has drafted such a bill,
the Police Order 2010, but has yet to present it to the Punjab assembly. The central political leadership, along with
the four provincial governments, should initiate a broad
dialogue with stakeholders, including serving and retired
senior police officials, jurists, criminologists, NGOs and
other civil society groups, to assess the merits and demerits of the original police order. The resultant bills should
address the many gaps in law enforcement, and also have
the broad public acceptance and political sanction that
will be needed for their implementation.

cial capitals. At the sub-district level, assistant superintendents
(ASPs) and deputy superintendents (DSPs) command the police. Under the 2002 Police Order, the IG is now known as the
provincial police officer (PPO). The police force is headed by a
capital city police officer (CCPO) in each provincial capital,
recruited from officers of at least AIG rank; a city police officer
(CPO) in each city district, recruited from officers of at least
DIG rank; and a district police officer (DCO) in each district,
who is recruited from officers of at least SSP rank. Each region
also has a regional police officer (RPO). See Crisis Group Report, Reforming Pakistan’s Police, op. cit.
31
Crisis Group interview, Lahore, 26 May 2010.
32
Crisis Group interview, Karachi, 15 June 2010.

C. UNDOING THE LEGACY:
THE EIGHTEENTH AMENDMENT
The governments of Benazir Bhutto and Nawaz Sharif
during the democratic transition of the 1990s had a mixed
record on law and order. Successes included the creation
of the CPLC in Karachi in 1989, and the Sindh Criminal
Investigation Department (CID) to tackle sectarian terrorism in the mid-1990s, later replicated in Punjab. When
in government, both parties, however, allowed political
objectives to determine police appointments, promotions
and transfers, and often diverted police forces from their
primary law and order duties to serve narrow political
agendas. They also ceded law enforcement duties to the
military, in the name of counter-terrorism, as in the second Sharif government’s ill-advised promulgation of the
Pakistan Armed Forces (Acting in Aid of Civil Power)
Ordinance, 1998, which extended broad judicial powers
to the military to tackle lawlessness in Sindh, through
military courts authorised to try civilians.33 These mistakes should not be repeated during the current democratic transition.
Deviations from constitutionalism for short-term ends have
already occurred, specifically the National Assembly’s
March 2009 endorsement of the Nizam-e-Adl 2009 to
impose Sharia in PATA, in an effort to appease Swatbased militants.34 However, the political leadership has
also taken some critical steps to undo the legacy of military rule and restore constitutional functioning. In April
2010, both chambers of parliament unanimously passed
the eighteenth constitutional amendment, containing more
than one hundred provisions to restore parliamentary supremacy, devolve greater authority to the provinces, and
bolster judicial independence. The presidential power to
dismiss the elected government was repealed, along with
Musharraf’s LFO and seventeenth amendment. A new
article in the eighteenth amendment also guarantees the
right to a fair trial and due process. Another clause prohibits the superior judiciary from validating the abrogation, subversion or suspension of the constitution.

33

The jurisdiction of this ordinance was later extended to the
whole country. In February 1999, the Supreme Court ruled that
the ordinance was unconstitutional. The Sharif government
subsequently repealed it. For more detail, see Charles H. Kennedy, “The Creation and Development of Pakistan’s AntiTerrorism Regime, 1997-2002”, in Satu P. Limaye, Robert G.
Wirsing, Mohan Malik, (eds.), Religious Radicalism and Security in South Asia (Honolulu, 2004), pp. 387-413.
34
For analysis on the Nizam-e-Adl’s impact, see Crisis Group
Briefing, Pakistan: The Worsening IDP Crisis, op. cit.; and
N°93, Pakistan’s IDP Crisis: Challenges and Opportunities, 3
June 2009.

Page 7

Delivering on the PPP and PML-N’s pledges to build judicial independence, the reforms also call for a new mechanism for appointments to the Supreme Court through a
judicial commission chaired by the Supreme Court chief
justice, and comprising the two next most senior Supreme
Court judges; a retired Supreme Court judge; the federal
law minister; attorney general; and a senior advocate
nominated by the Pakistan Bar Council. Final approval
lies with an eight-member bipartisan parliamentary committee, with four members from the treasury and four
from the opposition benches. The committee requires six
votes to reject the judicial commission’s nomination.35
Parallel commissions are to be established for provincial
high court appointments. These changes will help prevent
arbitrary appointments, limiting the power of any single
individual, whether the president or the chief justice, to
stack the bench, which has undermined judicial functioning and the quality of justice in the past.36
The eighteenth amendment is possibly the most significant
legislative achievement since the 1973 constitution. The
parliament now needs to consolidate and build on the intended reforms. Religious discriminatory laws have yet to
be repealed. Nor should reforms stop there. In the words
of a former Supreme Court chief justice: “An independent
justice system doesn’t just refer to judges; it also means
police, prosecutors and independent investigations”.37

35

Previously, the president, in consultation with the Supreme
Court chief justice, made Supreme Court appointments.
36
Criticising the appointment process, on 21 October, in a short
order, the Supreme Court referred the new mode of senior judicial appointments to parliament procedure, recommending that
the judicial parliamentary committee articulate its reasons for
rejecting a judicial nominee in writing. The parliamentary committee on constitutional reform is now considering the Supreme
Court’s recommendations. “Chief Justice names two members
of judicial commission”, Dawn, 26 October 2010.
37
Crisis Group interview, Justice (r) Saeeduzaman Siddiqui,
Karachi, 16 June 2010.

III. AN OVERBURDENED
INFRASTRUCTURE
A. COURTS AND PRISONS
Pakistan’s courts and prisons are overburdened. At the
start of 2010, excluding those before special courts and
administrative tribunals, there were more than 177,000
cases pending in the superior courts, including the Supreme Court, the provincial high courts and the Federal
Shariat Court; and more than 1.3 million in the subordinate judiciary.38 Police, lawyers and judges argue that
the numbers of courts need to be doubled at a minimum.
Staffing those courts will be an even more crucial task.
Around 900 magistrates with civil and criminal jurisdiction for a population of roughly 160 million handle around
75 per cent of all criminal cases. While there have been
some improvements in recruitment and salaries, with the
Punjab government for example tripling judicial officers’
salaries, the benefits are not yet visible, and trained judges
are scarce.
Prisons are overcrowded, with prisoners on trial accounting for more than 80 per cent of the prison population.
Only 27,000 of the country’s roughly 81,000 prisoners
have been convicted.39 In early 2010, a major prison in
Lahore, with a capacity for 1,050, held 4,651 prisoners.40
There has been some improvement in recent years. In
August 2008, for instance, Sindh’s prison population was
over 20,000;41 by September 2010, Sindh’s prisons held
18,234 prisoners but still significantly above the prison
capacity of 9,541, and with only 2,641 convicts.42 Prison
resources, which would be inadequate even for a smaller
prison population, are vastly overstretched. A Sindh provincial minister told the Sindh Assembly that the government had only 155 vans to bring more than 13,000
prisoners to court.43 Prisoners are seldom transported to
court on the date of their hearing. “It seems to take more
time to bring a person to court than to actually dispose of
the case”, said a former Sindh advocate general.44 Conditions are abysmal and prisoners’ rights regularly violated.

Page 8

Remand prisoners, for example, are assigned to labour in
contravention of the law.45
Pakistan’s death row population – roughly 7,700 – is more
than one third of the total global death row population of
about 20,000, a statistic aggravated by the high number
of offences – over two dozen – punishable by death.46
Because of a 1991 Federal Shariah Court decision, for
example, blasphemy crimes carry a mandatory death sentence. This includes cases involving members of the Ahmadi
community. Under the Hudood Ordinances, extra-marital
sex is also punishable by death47 as is the possession of
100 or more grams of narcotics such as heroin.48
This huge prison population has serious security implications. Law enforcement officials refer to prisons as the “thinktanks” of militant groups, where networks are established
and operations planned, facilitated by the availability of
mobile phones and a generally permissive environment.
Prisons have thus become major venues of jihadi recruitment and activity.49
There have been few sustained efforts to address overcrowding and the conditions of under-trial prisoners, or
even to implement existing codes and procedures. In 1972,
Pakistan’s first elected government, led by Zulfikar Ali
Bhutto’s PPP, passed a reforms package aimed at improving justice delivery and providing relief for prisoners, including through the provision of bail. Under Section 426
(I-A) of the CrPC:
An appellate court shall, unless for reasons to be recorded in writing it otherwise directs, order a convicted
person to be released on bail who has been sentenced –
a) to imprisonment for a period not exceeding three
years and whose appeal has not been decided within
a period of six months of his conviction;
b) to imprisonment for a period exceeding three years
but not exceeding seven years and whose appeal
has not been decided within a period of one year
of his conviction;

According to a report, “mysterious” deaths and suicides in
prison more than doubled in 2009 to 240, up from 108 in 2008.
Answer Hussain Sumra, “Mysterious deaths, suicides at jails
more than double in 2009”, Daily Times, 5 January 2010.
46
See “State of Human Rights in 2009”, op. cit.
47
The sentence for extra-marital sex is death by stoning.
48
According to HRCP’s Kamran Arif: “Nobody checks if it is
actually 100 grams of heroin, or if it is 10 grams of heroin and
90 grams of some other ingredient”. Crisis Group interview,
Islamabad, 1 April 2010.
49
Crisis Group interviews, police officials, Karachi, Lahore and
Islamabad, May-August 2010.

c) to imprisonment for life or imprisonment exceeding seven years and whose appeal has not been
decided within a period of two years of his conviction.
The ordinance also targeted under-trial prisoners, under
Section 497:
Provided further that the court shall, except where it is
of opinion that the delay in the trial of the accused has
been occasioned by an act or omission of the accused
or any other person acting on his behalf, direct that
any person shall be released on bail:
a) who, being accused of any offence not punishable
with death, has been detained for such offence for
a continuous period exceeding one year and whose
trial for such offence has not concluded; or
b) who, being accused of an offence punishable with
death, has been detained for such offence for a
continuous period exceeding two years and whose
trial for such offence has not concluded.50
These rights were steadily eroded as the judiciary negated
the concept of bail,51 and as reforms under military government added several non-bailable offences. The result
is overcrowding in prisons, mostly with remand prisoners
whose conditions in jails the incumbent Supreme Court
chief justice has described as “sub-human”.52 I.A. Rehman, director of the independent Human Rights Commission of Pakistan (HRCP) said: “For years, the courts have
been saying that bail should be easy, the bonds should be
light”. Yet the prisons remain overcrowded although only
27,000 of the country’s roughly 81,000 prisoners have
been convicted.53
After the democratic transition began in 2008, the national
and provincial assemblies have taken some steps to improve conditions and provide relief to prisoners. The Sindh
and KPK governments have approved 300 million rupees
(about $3.5 million) and 20 million rupees (about $235,000),
respectively, to improve jail conditions, raise prison staff

Page 9

salaries, and enhance security. The Sindh government
also funds legal aid facilities across the province.54 In mid2008, the Punjab government began building new jails in
nine districts.55 Prime Minister Yusuf Raza Gilani, too,
has identified jail reform as a major government priority.
Building more prisons, however, is not sustainable, given
the country’s strained resources, nor does it address the
rights of remand prisoners. The national and provincial
governments must ensure that cases are processed through
the courts according to constitutional provisions. They
should equip prisons with the necessary resources to bring
prisoners to court on the day of their hearings, ensure that
remand prisoners’ rights are respected and that they are
not treated as convicts, and provide legal aid to those who
cannot afford it. Most importantly, granting bail should
become the norm. Judges should only deny bail if there
are grounds to believe that the defendant would abscond
or commit further offences while on bail; and the authorities must allocate the necessary resources to maintain a
basic infrastructure for bail.
The burden on the justice system is also aggravated by
the scarcity of trained trial lawyers. According to a former law minister and practicing Supreme Court advocate:
“In any big district, there are five to ten leading trial lawyers. Those who can afford to, or have been accused of
serious crimes, will seek to engage them. There are about
twenty to 30 trial lawyers in the next tier. These lawyers
cannot deal with the burden [of cases]. So increasing the
number of courts will not reduce pendency [the suspension of cases]”.56
Many lawyers and law enforcement officials support creating alternative dispute resolution mechanisms for lesser
offences to reduce the burden on courts and prisons. “More
than 50 per cent of cases would go away if you separated
minor offences from criminal jurisprudence”, said Gilani.57
Police have experimented with alternative mechanisms at
the level of the police station such as peace committees
comprising respected members of the community to adjudicate petty crimes and minor civil disputes, where the
parties involved would sign an agreement that either side
could take the matter to the regular courts if it believed

50

Pakistan Code of Criminal Procedure.
“In the 1960s and 1970s, bail was invariably granted. Today,
no bail is granted even for minor theft”, said a former law minister. “Courts do not make a distinction between minor and serious offences with respect to bail”. Crisis Group interview,
Syed Iftikhar Gilani, Islamabad, 24 May 2010. Lawyers and
human rights activists attribute this to a lack of will on the part
of the government and the judiciary to address overcrowding or
defendants’ rights. Crisis Group interviews, Islamabad and Karachi, June-August 2010.
52
Justice Iftikhar Mohammad Chaudhry, “Justice at the grassroots level”, Introductory speech to 4-day meeting of the National Judicial Policy Making Committee, 18 April 2010.
53
Crisis Group interview, Lahore, 27 May 2010.
51

the judgment to be unfair.58 This initiative, however, lacks
the sanction of the law.
Instead, the government should reform sentencing structures for non-violent petty crimes, to include alternatives
to imprisonment, such as fines, probation and community
confinement, community service, and drug and psychological treatment. Existing provisions for probation have
never been properly implemented because, according to a
former law minister, successive governments have proved
unwilling to invest in the required infrastructure, such as
hiring and training probation officers.59 In the long term,
however, the costs – political as well as fiscal – of sustaining and indeed increasing the number of prisons would
likely outweigh those of an effective probation regime.

B. POLICE STATIONS
Police stations are also inadequately equipped, even sometimes lacking proper premises. In one sector in Karachi,
for example, the local police station was a makeshift
structure located under a major bridge, without proper
walls and encroaching on public land.60 Police budgets do
not cover individual stations. Instead, allocations for arms
and ammunition, transport, maintenance, stationery and
other necessary items are centralised in provincial police
budgets and then distributed to stations. Many stations do
not have their basic requirements met and their monthly
expenditures outpace their allocation. Most stations are
self-financed to a significant extent. For example, police
pay for their own stationery, and maintenance of vehicles,
including petrol.61 “The SHO becomes beholden to others
because he is relying on them to provide his station with
the cars, equipment, and so on, to be able to do his job”,
said a serving SHO.62 The SHO is similarly beholden to
superiors who often interfere in police station business
on behalf of outsiders, including intelligence officials,
discussed in more detail below.
The Police Order 2002 made the force even more top heavy,
further weakening police stations’ operational independence and efficacy. A defence analyst noted: “The Police
Order of 2002 increased senior police posts by 300 per

58

This was tried in Punjab’s Gujaranwala and Rawalpindi districts. Crisis Group interviews, Punjab police officials, Lahore,
May 2010.
59
Crisis Group telephone interview, Iftikhar Gilani, Islamabad,
24 November 2010.
60
Crisis Group interviews, police officials, Karachi, June 2010.
61
In a recent case, a complainant whose wife was being held
against her will in an Islamabad hostel had to drive the police in
his own car to the site to retrieve her and arrest her abductor
because his was the only transport available. Crisis Group interview, police station, Islamabad, September 2010.
62 Crisis Group interview, Islamabad, July 2010.

Page 10

cent. More than 15 per cent of the police budget funds police administrators in the form of a long chain of supervisors above the DSP [deputy superintendent police] level”.63
Small committees of honorary magistrates, composed of
respected citizens, should be formed that visit their local
police station weekly to ascertain recent activities, including the number of first information reports (FIRs –
the initial complaint made to the police) filed and for what
kinds of crimes, the number of people in lock-ups, and
the duration of their confinement. The committee should
also assess the station’s facilities and resources, identify
gaps in capacity, and help articulate needs to senior officials. Involving local residents in police stations, said a
former judge and founder of Karachi’s CPLC, would significantly improve citizen-police relations, and make community oversight more effective. 64
Under Police Order 2002, CPLCs were established in
other parts of the country but they lacked proper funding,
authority and political support to be effective.65 The
Karachi CPLC provides a good working model of community-police coordination, which should be replicated
throughout Sindh and countrywide. Shortly after being
created in 1989, for example, a CPLC team visited the
Ferozabad police station in one of Karachi’s major residential areas. “The conditions were atrocious”, said retired justice and former governor Ebrahim. “We said,
‘Let’s fix this’. Initially, the police there didn’t trust us, so
they posed resistance, but they soon came to realise that
we were there to support them, and that we in turn had
support from the Inspector General [Khawar Zaman] and
the Deputy Inspector General [Afzal Ali Shigri]. The result was that the people of that area got better service”.66
The Karachi police and the CPLC also agreed to establish
an independent registration centre that would keep a computerised record of all FIRs.
The importance of police stations maintaining computerised records of all FIRs cannot be over-emphasised. A
process should also be devised for citizens to check the
status of their FIRs and to complain to the proper authority in case of neglect.
Provincial and district public safety commissions should
also be established, according to the original 2002 Police
Order, with half of their members being elected officials
63

nominated by the speaker of the relevant legislature, with
equal representation from the government and opposition,
and the other half comprising independent members appointed by the provincial governor from a list of candidates nominated by independent selection panels. Once
an FIR is registered, they should also play a proactive
role to ensure that criminal activity is properly reported
and investigated, including the activities of banned extremist groups and dissemination of hate materials and
incitements to violent jihad, including by madrasa and
mosque leaders. These commissions should also be required to approve any premature transfers of police officials, and investigators, as mandated under the original
Police Order. This should also include any transfers of
investigators before the conclusion of their investigations.

Page 11

IV. REFORMING THE CRIMINAL
JUSTICE SYSTEM
A. INSTITUTIONALISED CORRUPTION
Criminal justice begins with an FIR at a police station.
The constitution requires any person taken into police
custody to be presented before a court within 24 hours,
with the judge then determining whether, prima facie,
there are grounds for a case. This process is more often
than not honoured in the breach. Magistrates commonly
order a remand without even seeing the accused. Moreover, when judges do not remand the accused, the police
often re-arrest him or her. By law, the accused cannot be
in police custody for more than fourteen days, although
courts typically grant extensions on the grounds that the
police need more time to recover evidence. “Meanwhile,
the police are beating up the accused to get a confession”,
said the HRCP’s I.A. Rehman.67
After police custody, the accused is transferred to a prison,
under judicial remand, and is eligible for bail – which
is seldom granted, as discussed. Magistrates hear minor
criminal cases, while a sessions judge tries offences that
carry longer prison sentences or are punishable by death.68
Although trials are supposed to be completed within one
year, they can continue for several, mostly due to administrative delays, including the failure to bring prisoners to
court on trial dates.
A trial can only begin after the submission of a challan,
or case brief.69 Until 1972, once the police received a
complaint, they would determine on their own whether a
case should be registered. This authority was widely
abused. Zulfikar Bhutto’s 1972 law reforms tried to limit
the potential for abuse by requiring every complaint to be
registered and, by extension, an arrest made. Nevertheless, bribery and political pressure frequently dissuade
police from registering cases. The law now allows private
parties to go straight to the courts to register a case if the
police fail to do so. This provision, however, is similarly

67

Crisis Group interview, Lahore, 27 May 2010.
Pakistan’s judicial structure comprises civil and judicial magistrates at the base of the hierarchy, who hear minor civil and
criminal disputes. They are supervised by district and sessions
judges, whose courts act as appellate courts in some cases, and
as trial courts for more serious offences. The higher or superior
judiciary comprises four provincial high courts, whose principal seats are in the provincial capitals. They hear appeals from
district and sessions courts. The apex court, the Supreme Court,
hears appeals from the high courts and also exercises original
jurisdiction in fundamental and public interest cases.
69
See Crisis Group Report, Reforming the Judiciary in Pakistan, op. cit.
68

misused to register false cases, often turning private disputes into criminal matters.
“Right now, no one gets punished for registering a false
case”, said a senior advocate. “You need to have a much
stronger deterrent in the law. Even though there is a law
in place, it is an eyewash”.70 A retired Supreme Court justice and former Peshawar High Court chief justice said:
“A lot of the time, so-called witnesses are not even present at the crime scene, but they accuse someone and an
FIR is lodged. But if the IO [investigating officer] is honest, he won’t be bound by that FIR. He will investigate,
conclude that the FIR is not credible, and refuse to issue a
challan [case file]”.71
The 1972 law reforms amended the CrPC to allow judges
to acquit if there is a “probability that the person will not
be convicted”. Judges seldom apply this. The CrPC also
requires magistrates to review cases and decide if they
should be sent to a sessions judge, who also has a duty to
evaluate the material before cases go to trial. Frivolous
cases nevertheless continue to clog trial courts.72
Pakistan has a very low conviction rate – around 5 to 10
per cent. The statistics are misleading since many convictions are achieved through guilty pleas, often in drug possession cases, to obtain lighter sentences and avoid the
long and arduous pre-trial phase; while legal, these guilty
pleas do not reflect the level of trial advocacy. According
to Nasir Aslam Zahid, a retired Supreme Court justice
and former Sindh High Court chief justice: “Very few
cases – not even 1 per cent– are decided on merit, where
the prosecution and the defence have adequate opportunity to present evidence and argue”.73 The conviction rate
dips below the average for more serious crimes such as
murder and acts of terrorism, where cases depend mainly
on confessions to the police, usually obtained through
force and inadmissible in court.
Defendants with financial and political capital often evade
punishment, while those without remain in jail, most often
without being convicted or convicted on half-baked and
concocted evidence. Few, even within the law-enforcement agencies, trust the trial process as a credible mechanism to combat serious crime. This encourages indefinite

70

Crisis Group interview, Islamabad, 22 April 2010.
Crisis Group interview, Justice (r) Abdul Karim Kundi, Islamabad, 10 June 2010.
72
One such example is a 2009 murder case in KPK’s Swabi district. The accused murderer was acquitted due to lack of evidence one year after his arrest. Subsequently, five people who
were allegedly present during the killing were arrested as accessories, even though the main accused had been acquitted;
their trial continues. Crisis Group interview, senior advocate,
Islamabad, 24 May 2010.
73
Crisis Group interview, Karachi, 18 June 2010.

Page 12

detentions, extrajudicial killings, discussed in more detail
below, and other unconstitutional crime-fighting methods
that have further contributed to the breakdown of the rule
of law.
The un-amended Police Order 2002 had called for the
creation of a criminal justice coordination committee in
each district comprising a district and sessions judge, the
head of the district police, a district public prosecutor, the
district superintendent of jails, the district probation and
parole officers and the head of investigation. The committee was to convene once a month, and its functions were
to review and work towards improving the criminal justice system. If properly resourced, these bodies could
have been effective but they were never established. All
four provincial governments should include such a provision in their police reform bills.
An ombudsman’s office should also be created to supervise criminal courts. This official’s responsibilities should
include examining ways to ensure that courts and judges
have proper facilities; as well as to monitor a judge’s
monthly caseload, including which cases were disposed,
which were not, and reasons for any delay; cases where
bail was and was not granted; and the availability of judges,
including the hours they spent in court.

B. SPEEDY JUSTICE OR JUSTICE DENIED
In a June 1998 Mehram Ali case, the Supreme Court, while
calling for remedies to trial delays, particularly in terrorism cases, acknowledged that the “sacrifice of justice to
obtain speedy disposition of cases could hardly be termed
as justice”. It added: “A balance ought to be maintained
between the two commonly known maxims, ‘justice delayed is justice denied’ and ‘justice rushed is justice
crushed’”.74 Yet the higher judiciary is focusing almost
exclusively on clearing the enormous backlog. The proposed reforms could do more harm than good. In May
2009, the National Judicial (Policy Making) Committee
(NJPC), headed by the Supreme Court chief justice, produced the National Judicial Policy (NJP) 2009 to make the
judicial system “responsive to the present-day requirements
of society”.75 Concentrating on speedier justice delivery,
pressuring the police and courts to dispose of cases within
a fixed timeframe, the NJP identifies the problem as one
of inadequate budgetary allocation and infrastructure.

In reducing justice delivery to a numbers game, the judiciary has failed to analyse the system’s weaknesses. In
criminal cases, the focus on the backlog rather than on the
low conviction rate will only yield more acquittals and
fewer successful convictions. While protecting the rights
of the accused, the strategy overlooks the rights of the
victim to get justice. “The trend now [after the NJP] is to
dispose of a case rather than properly decide it, so you
will try to find some loophole rather than adhere to the
spirit of the case and of justice”, said Abid Hassan Minto,
a prominent senior advocate and former Supreme Court
Bar Association (SCBA) president.76 Other former SCBA
presidents and several prominent jurists have similarly
criticised the NJP’s emphasis on speedy justice, with a
former SCBA president, Ahmed Ali Kurd arguing that
cases would be “compromised due to paucity of time”.77
As it is, trial court judges commonly seek short cuts to
dispose of cases quickly, a trend that the NJP will exacerbate. In a recent example, in May 2010, female officers in
a Punjab police station who brutally beat up a woman in
an attack captured on video were acquitted because the
victim claimed the incident never took place – presumably under pressure. Neither the prosecution nor the court
called for the video footage to be entered into evidence,
despite the judge’s authority, under the CrPC, to “order
the production of any document or things and neither the
parties nor their agents shall be entitled to make any objection to any such order or question”.78 By and large,
judges seldom invoke their authority to demand that evidence be brought to court, instead adopting, as what one
criminal lawyer described, a “lethargic approach” to the
trial process – including in terrorism trials.79
The fixation on swift justice is certainly hampering the government’s fight against terrorism. A Karachi-based civilian counter-terrorism official said: “We investigate for six
years, we get the guy, and then it takes two hours for the
court to let him off the hook”.80 Provincial home depart-

76

Crisis Group interview, Lahore, 27 May 2010.
Crisis Group interviews, retired superior court judges and
senior advocates, Islamabad, Lahore, and Karachi, April-July
2010. See also Iftikhar A. Khan, “Kurd unhappy about SC verdict on NRO”, Dawn, 23 December 2009.
78
Section 161, Qanun-e-Shahadat.
79
Crisis Group interview, Hina Jilani, Lahore, 28 May 2010.
80
Crisis Group interview, Sindh CID official, Karachi, June
2010. In October 2009, the Lahore High Court quashed FIRs
against Hafiz Saeed, leader of JD, the renamed LeT, who was
accused of exhorting supporters to wage jihad against the U.S.,
India and Israel. Hina Jilani argued: “There must be a wealth of
evidence against [Saeed]. Where is it? Police don’t get and
judges are happy to throw [the case] out”. Crisis Group interview, Lahore, 28 May 2010. Many lawyers and police officials
attribute the high acquittal rate in terrorism cases, in part, to
judges’ eagerness to dispose of cases rather than order police
77

Page 13

ments, moreover, do not maintain serviceable records of
withdrawn cases, even though they have the authority to
approve the withdrawal of a case. This reduces accountability for such decisions.
The demand for swift justice has also, as discussed below,
been used to justify parallel, highly discriminatory systems such as the Nizam-e-Adl 2009 in PATA as well as
illegal detentions and extrajudicial killings. In reforming
the justice sector, the government and other stakeholders,
including the legal community, should shift the focus from
short-term solutions for speedier delivery towards establishing a system that tackles the primary threats to internal stability and instils public confidence in the state. This
will not be achieved through short-cuts that undermine
legal and constitutional norms, as in PATA. Instead, there
is urgent need for a comprehensive assessment of the
gaps in investigation and prosecution, the identification of
mechanisms that have worked successfully in the past,
and the provision of adequate resources and personnel at
the national, provincial and district levels.

C. THE PRE-TRIAL PHASE:
STRENGTHENING INVESTIGATIONS
1. The state of investigations
A severely deficient pre-trial phase is the main cause of
weak prosecution cases. Evidence is poorly recorded and
stored, lost, compromised, falsified or simply inadequate;
crime scenes are regularly contaminated.81 Corruption and
political interference, including by the military’s intelligence agencies, also compromise investigations;82 and
there is a severe shortage of qualified personnel. “You
cannot ever undo the [fraudulence] of the investigation
phase, no matter how high it goes after that”, said Khawar
Zaman, a former Sindh IG.83
Provincial police forces have an investigation branch with
two wings, crime and investigation, each headed by a deputy inspector general (DIG). A special branch collects and
disseminates information on individuals and organisations suspected of subversive activities. The Criminal
Investigation Departments (CIDs) are responsible for

and prosecutors to seek more evidence. Crisis Group interviews, lawyers and police officials, Lahore, Karachi and Islamabad, May-July 2010.
81
In arguably the best-known instance, the site of former prime
minister Benazir Bhutto’s assassination in December 2007 was
washed and cleared before investigators arrived on scene.
82
See Crisis Group Report, Pakistan: The Militant Jihadi Challenge, op. cit. For more on interference by the military’s intelligence agencies, see also Maqbool Ahmed, “Tug of war”, Herald, December 2008.
83
Crisis Group interview, Lahore, 27 May 2010.

anti-terrorism operations, investigations and intelligence
gathering, and serve as coordination points between federal and international agencies with respect to terrorism.84
Investigating officers (IOs) make up roughly 13 per cent
of the police force. According to a senior investigator in
Punjab: “If you analyse the ratio of crime to the number
of available investigators, you find a huge imbalance. The
police force does not have a proper shift system. What
you need is to distinguish between shifts (for example,
day and night; urban and rural), and then determine the
number of investigators you need in each shift based on
population and crime rate. You say, ‘This is how many
people we have got, these are our requirements. Now
make up the difference’”.85 In Lahore, the capital of Pakistan’s most populous province, an overall case load of
3,000 per month is common – typically divided between
no more than ten investigators. “One investigating officer
has to handle 30 to 40 cases [at a time]. These officers are
not even focusing exclusively on investigations. How do
they tackle this, while doing the cases justice?” said former IG Khawar Zaman.86
Like the police service in general, investigation agencies
face major difficulties in recruiting qualified personnel due
to low pay, poor working conditions and adverse public
perceptions. Compared to other departments, investigation
agencies are at a further disadvantage because potential
candidates “know they would have to work with blunt tools,
and investigation is generally seen as less glamorous and
lower profile than other departments such as operations”.87
Civilian counter-terrorism officials complain that, given
the major gaps in their investigative capacity, they are
forced to rely on “buying” information and running paid
informants, but have extremely limited funds even for
this.88 According to former Supreme Court justice Nasir
Aslam Zahid: “When preparing the budget there are no
demands from the police department saying we need this
many investigating officers, this many trained, these police
academies to be reinforced in these ways”.89 The high
volume of criminal cases demands a thorough analysis of
how many investigators are required, and their training
and resource needs, which should then be reflected in
provincial budgets. Although the national police budget
does contain provisions for investigations, Islamabad has

failed to institute mechanisms to spend the money effectively and accountably.90
Investigating officers seldom write their own investigation
reports, which a constable prepares by hand. The report
is based on the IO’s notes although the constable rarely
accompanies the IO to the crime scene or other locations
where evidence is collected and statements recorded.
Unqualified translators record witness testimonies in two
languages. This produces confusing and inaccurate reports,
with many criminal lawyers and prosecutors claiming that
they can seldom follow the logic of charge sheets. The Punjab home department has proposed reforms to the AntiTerrorism Act (ATA) 1997 to require that investigation
reports in terrorism cases be written by an officer at the
assistant superintendent or deputy superintendent level.
This should be a requirement in all major criminal cases.
“Police have fourteen days to submit a charge sheet, so the
IOs are in a hurry, it’s always a rushed job”, said a Karachi-based former anti-terrorism prosecutor. “They find
weak witnesses when they get the complainant to find the
witnesses rather than finding them independently … then
they submit a charge sheet”.91 The NJP’s demand for speedier justice will further encourage rushed investigations
and miscarriages of justice.92
“The police file cases under the influence of the complainant or the accused, so there is no factual basis, and evidence is cooked up”, said Abid Hasan Minto, a senior
lawyer.93 Investigators are regularly replaced during the
process. “An investigation always goes against someone”,
said a former Sindh IG. “If that person is influential they
will go to a parliamentarian or an SP [Superintendent of
Police] to have the IO changed, and this will go on and on
until a ‘friendly’ investigator comes along”. During his
stint as inspector general in Sindh, Zaman calculated an
SHO’s average tenure as three months. He said that this
was especially prevalent in rural areas, where pressure
from local elite on the police is the norm.94
Criminal lawyers, prosecutors and police officials argue
that while the current investigation procedure might be
appropriate for murder, theft, rape and other criminal cases,
new challenges like money laundering, cyber-crime and
terrorism require joint investigation teams, including legal
experts conversant with such cases, rather than a single
90

Crisis Group interviews, serving and retired police officials,
Islamabad and Karachi, October 2010.
91
Crisis Group interview, Karachi, June 2010.
92
“An IO is given maximum commendation if the maximum
number of people are convicted, so there is no weeding out [at
the investigation stage]”, said a former law minister. Crisis
Group interview, Syed Iftikhar Gilani, Islamabad, 24 May 2010.
93
Crisis Group interview, Lahore, 27 May 2010.
94
Crisis Group interview, Lahore, 27 May 2010.

IO. They also advocate forming teams of multiple IOs
and experts to tackle crimes with clear connections to terrorism or to criminal syndicates, such as kidnappings-forransom, bank robberies and money laundering. Former
Sindh IG Afzal Ali Shigri has called for a national committee of provincial police chiefs, and similar provincial
committees of district chiefs, to share information and
coordinate activities. “Terrorists do not work locally”,
he said. “Province to province, district to district, these
officers need to regularly come together”.95
Military intelligence agencies also too often investigate
terrorism cases without a legal mandate, with their teams
forcing the police to surrender suspects who are then either
kept in indefinite illegal detention or released. Since 2001,
between 4,000 to 6,000 people are reportedly missing,
with many secretly detained by such agencies, discussed
in more detail below.96 The federal government also commonly deploys federal paramilitary forces, including the
Rangers (in Sindh and Punjab) and the Frontier Corps (in
KPK and Balochistan) to tackle law and order crises. In
June 2010, for instance, the Rangers’ authority in Karachi
was expanded to include investigations, with these powers extended for one year the following month.97 “Once
these forces come, they never go back because everyone
wants the powers of arrest and interrogation. This does
not build the capacity of the police forces, while at the
same it requires a huge amount of resources to keep [the
federal forces] there. Police capacity building, therefore,
remains neglected”, said a former Punjab IG.98
Maintaining the Rangers, particularly in large cities like
Karachi, where the paramilitary force has had a substantial presence since the early 1990s, not only consumes
enormous funds for training and resources but also undermines the chain of command. Although the Rangers
formally fall under the federal interior ministry, in practice they report to the military high command.99 In September 2010, the major Baloch political parties, as well as
the police, opposed a federal interior ministry decision to
expand the Frontier Corps’ policing powers in Balochistan.100 The police’s ability to enforce law and order will

Page 15

be undermined as long as the government relies on these
paramilitary forces for policing. Centre-state relations
will also be adversely affected since these military controlled forces have little knowledge of local dynamics and
are inclined to rely far more on the use of force. Instead,
the federal and provincial governments should provide
the police the resources and authority needed for effective
law-enforcement.
The police should also invest in building internal capacity. Currently all police recruits undergo the same courses
and training, regardless of their seniority or skill sets. Due
to political appointments, patronage and corruption, many
continue to serve even without the modest training and
examination requirements.101 The federal and provincial
governments should develop specialised training and professional development courses. All new recruits should be
required to serve as understudies for a fixed amount of
time under senior officers, and after internal assessment,
assigned to one of the various departments. Those departments should offer further specialised courses. In investigation branches, even more specialised training should be
offered, for example in homicide, crimes against property,
cyber-crimes, terrorism and other crimes. Additionally
recruits should receive regular foreign exposure and training. These specialists should also have direct access to
sensitive data stored in all provincial Criminal Records
Offices (CROs), fingerprinting bureaus, statistical offices
and anti-terrorism monitoring cells.

2. Evidence gathering
Police training in evidence collection is negligible. With
police budgets focused on the procurement of arms and
ammunition, communication, transport and other infrastructure, the allocation for scientific resources is disproportionately low. A senior counter-terrorism official described Pakistan’s forensics capacity as “rudimentary” at
best.102 Investigators’ knowledge of what constitutes good
scientific evidence, and its importance in trials, is similarly limited. “I don’t remember any trial where DNA and
fingerprinting were taken into account”, said Hina Jilani,
a prominent criminal and human rights lawyer.103 In rape

95

Crisis Group interview, Islamabad, 21 October 2010.
See Carlotta Gall, “Picture of secret detentions emerges in Pakistan”, New York Times, 19 December 2007. See also, “Wife of
‘missing’ man embodies cause of ‘disappeared’”, Daily Times,
20 July 2007.
97
See “Rangers powers extended for one year in Karachi”, Express Tribune, 19 July 2010.
98
Crisis Group interview, Shaukat Javed, Lahore, 26 May 2010.
99
A director-general, appointed by the military, heads each branch
of the Rangers and Frontier Corps.
100
See Mohammad Zafar, “Political parties reject new FC powers”, Daily Times, 9 September 2010. For Crisis Group analysis
on security challenges and conflict in Balochistan, see Crisis
Group Asia Briefing N69, Pakistan: The Forgotten Conflict in
96

Balochistan, 22 October 2007; and Crisis Group Asia Report
N119, Pakistan: The Worsening Conflict in Balochistan, 14
September 2006.
101
For example, in April 2009, close relatives of influential
Sindh government officials were reportedly either inducted into
the Sindh police as deputy superintendents of police, or seconded
to the police from other provincial departments. See “Out-ofturn inductions in Sindh police”, The News, 12 April 2009. For
more detail on political appointments in the police, see Crisis
Group Report, Reforming Pakistan’s Police, op. cit.
102
Crisis Group interview, Karachi, June 2010.
103
Crisis Group interview, Lahore, 28 May 2010.

cases, for example, DNA samples are seldom examined;
in one rape case in June 2010, police officers disposed
of the victim’s clothes, not realising they were vital evidence. In a recent kidnapping case, the police threw away
the ransom note.104
In Karachi, which has a high crime rate and where ethnic
and sectarian violence has spiked in 2010, IOs did not
even have fingerprinting kits.105 Modern electronic fingerprinting cards are now available to the police, with
some international funding, and the Karachi police have
made their use mandatory in all investigations.106 Priority
for their distribution should be given to the FIA, the provincial CIDs – the lead counter-terrorism agencies at the
national and provincial level, respectively – and police
stations in urban centres and large districts with high
crime rates. In the long term, automated electronic fingerprinting should replace paper fingerprinting at all levels
of investigation.
The National Police Bureau, a federal policymaking body,
has initiated projects for an automatic fingerprint identity
system, discussed above. A national database of crime
and criminals is being created and land in Islamabad has
already been allocated for a federal forensic laboratory.
Progress in establishing the laboratory, however, has been
slow. Moreover, it comes under the National Police Bureau, rather than the FIA, which, as the top federal investigation agency, would be the appropriate authority. The
Punjab government, too, has launched a project to establish such a laboratory in Lahore.
Forensics laboratories should not be limited to the federal
and provincial capitals, but should be established in all
major districts to avoid delays. It is equally important that
they remain independent from the police and prosecutors
since evidence is easily – and often – manipulated. These
laboratories should be financially accountable to either
the public accounts committee in the relevant legislature,
or a subcommittee under the interior (federal) and home
(provincial) ministries. As a member of the National Police
Bureau, Ali Afzal Shigri, a former Sindh IG, recommended
that the federal forensics science laboratory, while falling
under the interior ministry’s purview, should be headed
by a criminologist. He also proposed that the laboratory
should be semi-autonomous, charging the police for its
services and thus generating income to self-finance part
of its operations.107

Forensics laboratories and CROs should also have the authority to recruit scientific experts from the private sector,
for example biologists and chemical experts, rather than
only from the police. Salaries and benefits would have to
be competitive to attract talent from the private sector.
The Police Order 2002 gives the police leeway to involve
the private sector, but such appointments still have to be
approved by the home department. According to a senior
counter-terrorism official in Sindh, “it takes a long, sometimes more than a year, and many hurdles to hire someone [from the private sector]”.108
Given that trials often begin after delays of two or three
years, the preservation of evidence is crucial, including
chains of custody. This is seldom done in provincial CROs,
thus compromising the evidence by the time it is finally presented in court. A former Supreme Court justice advocates
that IOs should keep close account of scientific evidence,
and serve as “a check against corruption or inefficiency
in forensic laboratories. They should send the sample to
another lab if they have doubts”. He added: “Doctors
often don’t do the post-mortems themselves, and erroneous
post-mortems are prepared. An IO can hold that doctor to
account, but this never happens”.109
Yet the government must establish appropriate mechanisms that subject forensic laboratories to proper oversight, while also ensuring their independence from police
or political interference. A subcommittee of the standing
committee of the interior (or home department in the provincial assemblies), with equal government and opposition representation, should maintain fiscal accountability
over laboratories, while also overseeing investigations into
the conduct of personnel. Federal and provincial criminal
justice coordination committees, established under the
Police Order 2002, should also be authorised to review
complaints by investigators and prosecutors about the
conduct of forensics labs, and act on credible reports of
corruption and malpractice. According to a former senior
police official, another potentially effective check against
the manipulation of forensic evidence would be to conceal the identity of the case and the individuals involved
from those testing the samples, which would be classified
instead by numbered codes.110
The lack of direct police access to telephone data, the
starting point of many investigations, is another critical
gap in investigations. To obtain telephone records, investigators must request access through the Directorate of

Inter-Services Intelligence (ISI), the military’s intelligence
agency, which rarely does so on time, thus squandering
the momentum of investigations. In kidnappings-forransom cases, which are often connected to terrorism and
terrorist financing, the delays and lack of access to telephone records can be especially costly; some police officials blame these problems for the rapidly increasing
number of kidnappings.111 “It is incredible that the first
line of defence doesn’t have access to phone data”, said a
Karachi-based civilian counter-terrorism official. A Pakistan-based foreign expert who works with Pakistani prosecutors said: “It would be inconceivable for telephone evidence not to be used in [his country]”.112

Such disputes will likely continue unless there is a law
that establishes clear protocols for access and use of such
data. In April 2010, the senate standing committee on the
interior called for direct police access to mobile phone
records in criminal investigations, rather than through the
military’s intelligence agencies. The Punjab home department proposed the same in July 2010.116 Parliament
should make this a major priority, and legislate appropriately to overcome military-imposed barriers to the police’s
access to vital data.

The CPLC’s success in solving several major kidnapping
cases in Karachi is attributable to its efforts in maintaining data, including telephone records, under arrangement
with the Pakistan Telecommunication Company Ltd.
(PTCL), and voice matching technology, and then guiding
the police in seeking and linking circumstantial evidence.
In a 2001 kidnapping, the organisation monitored and
taped telephone calls from the kidnapper to the victim’s
parents, experts analysed geographic patterns to narrow
the probable location to three pay phone booths, and,
involving the police at this stage, the kidnapper was arrested.
The CPLC and the victim’s parents then engaged a private
criminal lawyer as special public prosecutor, Mohammad
Ilyas Khan, who subsequently supervised all aspects of
the police investigation.113 “This was an example of how
a lawyer who knows the law and knows what constitutes
solid evidence gets good results”, said a former special
prosecutor.114 While recourse to the private sector and
organisations like the CPLC has helped the police, they
do not compensate for systemic gaps in investigative and
prosecutorial capacity.

The decision to take a case to trial ultimately rests with
the prosecutor. While the courts, prisons and police represent the public face of the justice system, the relatively
small prosecution services have lesser infrastructure needs
than the other three. Nevertheless, they form the core of
the criminal justice system and their effectiveness determines the effectiveness of the system.

Police officials have recommended creating mobile crime
scene units within each specialised police squad, with the
necessary equipment, including GSM locators, which could
then process crime scenes in a timely and scientific manner. In 2010, the Sindh police attempted to buy a GSM
locator but faced objections from the federal interior ministry. The Punjab police have tried on several occasions to
acquire direct access, but have similarly been blocked.
“The military’s will prevailed”, said a senior Punjab police
official, when describing his department’s failed attempts.115

D. PROSECUTORS

Until 2002, the prosecution services were part of the police
and came under the provincial home department. Each
provincial force maintained its own prosecution wing,
comprising law graduates of the rank of sub-inspector,
inspector or deputy superintendent. The Police Order
2002 separated the prosecution services from the police,
bringing them under the law department. Between 2003
and 2006, all four provinces passed a Criminal Prosecution Service Act to establish “an independent, effective
and efficient service for prosecution of criminal cases, to
ensure prosecutorial independence, for better coordination in the criminal justice system of the Province”.117
A prosecutor general heads each provincial service, appointed by the provincial government. Below him are additional prosecutors general, deputy prosecutors general
and assistant prosecutors general; there are district public
prosecutors, deputy district public prosecutors and assistant district public prosecutors at the district level.
Separating police and prosecution was overdue, but the
nascent setup faces major difficulties. The Police Order
2002 did not require additional training for prosecutors
recruited into the new service. Inducting recruits with
criminal law expertise remains a major challenge, particu-

larly as the prosecution services have yet to develop an
institutional identity and are starved of resources. A large
number of posts remain vacant;118 political appointees,
with little training, fill many posts. “Prosecutors with
only three or fours years experience are serving as district
attorneys or assistant district attorneys”, said a former
Punjab IG.119 A former Supreme Court chief justice added:
“To separate prosecution from the police, you need to
properly fund it and man it with a competent lawyer. That
has not happened”.120
There is no separate training academy for prosecutors,
nor is there any follow-up training after a prosecutor is
recruited. According to Salim Akhtar, the dean of the
Sindh Judicial Academy, although his institute is mandated to train prosecutors, and reached an agreement with
the provincial advocate general to do so in 2007, not a
single prosecutor had enrolled by the end of the 20092010 academic year.121 Low salaries compound the challenge. Under Section 9 of the Criminal Prosecution Act, a
prosecutor must formally approve a case for it to go to
trial. As such, prosecutors play an important pre-trial role,
which begins once a charge sheet is submitted and a court
assigns the case to an individual prosecutor. The prosecutor’s interaction with the IO starts at this stage, with the
latter guiding the former on which witnesses should be
present in court, and their quality.
The prosecutor’s twofold function – scrutinising case
files so that legal lacunae are addressed before they come
to court and prosecuting cases – is compromised by highly
flawed investigations as well as the prosecutors’ inability
or unwillingness to address those flaws during the pretrial phase. Prosecutors very often do not speak to witnesses until the case comes to court, undermining their
effectiveness against the defence, and making them overdependent on the police. While prosecutors have the authority to direct investigators to obtain particular forms of
evidence, and have arguably the highest stake in preserving a crime scene and evidence, many refrain from even
visiting crime scenes.

Page 18

Weak cases come to trial because “prosecutors do not want
to weed out cases they believe it makes them look weak
or dishonest”, said a former public prosecutor.122 According to Hina Jilani: “Prosecutors generally have no confidence to tell the police to back off, that this challan will
not work”.123 Said Hafeez Lakho, a former Sindh advocate general: “When I was advocate general, I would tell
the court, ‘I don’t have a case’. Judges appreciated it and
never accused me of corruption. If a prosecutor wrongly
claims he has no case, a judge can easily catch him out”.124
But judges do not always do so. Moreover, a former Supreme Court judge added, when charges against a party
are dismissed or dropped, “prosecutors and investigating
officers generally consider the case closed, rather than
follow up and use the resources at their disposal to catch
the real guilty party”.125
With public prosecutors widely perceived as incompetent,
if not corrupt, victims of crime or their relatives often solicit private counsel to prosecute a case. The private party
is deeply invested in the outcome of the case but handicapped by a very limited capacity to collect evidence. “Police will shirk their duty [in such cases]”, said a prominent Lahore-based senior advocate. “They feel it is not
their case, and will demand bribes to collect the evidence”.126
Some laws, such as the Domestic Violence Act, place the
burden of prosecution on the victim. A human rights lawyer said: “When the victim has to shoulder the burden of
prosecution, you can never expect results. Who is going
to testify on the victim’s behalf in a domestic violence
case?”127
The CPLC in Karachi routinely engaged private lawyers
to prosecute cases, or encouraged complainants to do so,
usually with better results.128 Prosecutors also engage in
private practice, raising doubts about their commitment to
pursuing criminal cases. In December 2008, the Punjab
law minister, noting that prosecutors’ private practices
were damaging justice delivery, considered imposing restrictions. He also threatened to dissolve the Punjab prose-

122

118

According to Supreme Court records, as of March 2010,
only nine of eighteen, and 27 of 50 vacancies had been filled
respectively for posts of additional prosecutor general and deputy prosecutor general in Punjab. There were 119 vacancies
against 328 posts for deputy district public prosecutors; and 249
vacancies against 795 posts for assistant district public prosecutor, in the province. Only 23 of Punjab’s 40 posts for district
public prosecutor were filled. Similar figures were found for Sindh
and Khyber Pakhtunkhwa. “Supreme Court Annual Report April
2009-March 2010”, Supreme Court of Pakistan, pp. 197-198.
119
Crisis Group interview, Shaukat Javed, Lahore, 26 May 2010.
120
Crisis Group interview, Justice (r) Saeeduzaman Siddiqui,
Karachi, 16 June 2010.
121
Crisis Group interview, Karachi, 18 June 2010.

cution department if it failed to improve its performance.129
Earlier that year, the Punjab government had terminated
the appointments of 488 public prosecutors from almost
all ranks of the department for inefficiency and for failing
to meet the eligibility criteria.130
Given that the prosecution services are still new, provincial
governments must not undercut their credibility through
such public threats and/or mass firings and transfers. Instead, pubic prosecutors should be guaranteed security of
tenure, while training and higher salaries would attract
better candidates. They should, moreover, be encouraged
to exercise discretionary authority to reject weak cases
and to pressure investigators to provide evidence that will
hold in court, ensuring that no evidence is ignored, contaminated or lost.
The federal and provincial governments should also create
a supervisory authority to examine the number of cases
an individual prosecutor prosecutes; the seriousness of
the offences; the number of cases in which bail was recommended; the numbers of cases abandoned; and reasons
for delays in starting a trial. Prosecutors should be required to analyse and report on acquittals, providing clear
reasons and identifying gaps in the investigation and
prosecution. Provincial and district committees comprising respected retired judges and senior advocates could
perform this function. Mechanisms should also be created
to strengthen police-prosecutor interactions and to institutionalise the prosecutor’s role in investigations, for example by creating joint police-prosecutor committees and
joint police-prosecutor training.
The Punjab home department has proposed that special
public prosecutors prepare the drafts of FIRs in terrorism
cases.131 In April 2010, the Punjab minister for law and
parliamentary affairs, Rana Sanaullah Khan, directed the
province’s prosecutors to visit their respective police stations once a week to assist investigations.132 However,
a clear demarcation of duties is needed to address the
mistrust between investigating officers and prosecutors,133
and the resulting turf battles. According to a former IG,
the Karachi CPLC’s role in crime-solving was accompanied by a “clear message that the CPLC was not going to

Page 19

be the policeman”.134 A similar message should underlie
all police-prosecutor coordination. Both institutions have
a stake in successful prosecutions, and should recognise
their interdependence and the importance of good coordination to raise the low conviction rate.

E. LEGAL REFORMS
Many lawyers and police officials argue that the failure to
implement existing laws and procedures has resulted in
poor criminal justice delivery; new laws are unlikely to
significantly improve matters.135 For example, Schedule 4
of the Anti-Terrorism Act (ATA) 1997 calls for constant
surveillance of proscribed groups, including of their offices, which law enforcement agencies seldom do. Any new
regulation against proscribed outfits would likely be similarly flouted. The legal community and law enforcement
agencies also realise that new laws are often passed without repealing old laws, resulting in multiple, sometimes
contradictory, laws on the book. Executive ordinances, by
military and civilian governments alike, add to the confusion. “Nobody in the law ministry or the judiciary can
claim to know what the valid laws of the land are”, said
Iqbal Haider, a former law minister, while also noting
that the Pakistan Code, a compendium of valid laws, has
not been published since 1970.136
Indeed, police officers’ ignorance of existing laws and procedures is widespread, especially among fresh recruits and
junior officers. More important than adding offences to the
PPC, the government should repeal all laws that discriminate on the basis of religion, sect and gender, including
the blasphemy and anti-Ahmadi laws, and the Hudood
Ordinances. As well as violating fundamental constitutional rights, these laws embolden militant outfits and encourage vigilante violence, including sectarian attacks.137
While a more vigorous application of existing laws and
constitutional rights would resolve serious internal security challenges, some major legal reforms are vital. The
government should introduce substantial amendments to
the PPC, CrPC and Evidence Act (Qanun-e-Shahadat) to
improve the police’s ability to bring terrorists and other
major criminals to justice. The rise of information tech-

129

“Prosecutors warned to mend ways”, The Nation, 26 December 2010.
130
Musharraf’s military government had appointed all of these
prosecutors.
131
“Punjab govt seeks access to phone call records”, Daily Times,
14 July 2010.
132
Crisis Group telephone interview, Zahid Bokhari, former
Punjab prosecutor general, 25 November 2010.
133
According to a former Sindh advocate general, “If IOs are
working with a dishonest prosecutor, they know their investigation will be affected”. Crisis Group interview, Hafeez Lakho,
Karachi, 16 June 2010.

134

Crisis Group interview, Afzal Ali Shigri, Islamabad, 21 October 2010. Shigri was the deputy inspector general (DIG) of
the Sindh police when the CPLC became functional in Karachi.
135
Crisis Group interviews, jurists and serving and retired police officials, Islamabad, Karachi and Lahore, May-June 2010.
136
Haider added: “Don’t keep changing statute laws, especially
procedure, over and over. It will just keep getting more confusing”. Crisis Group interview, Karachi, 19 June 2010.
137
See Crisis Group Reports, Reforming the Judiciary in Pakistan; The State of Sectarianism in Pakistan; and Pakistan: The
Mullahs and the Military, all op. cit.

nology-related crime, for instance, requires an effective
cyber-crime law. Changes to the Explosive Substance Act
should be made to regulate the use and sale of substances
like ammonium nitrate and potassium chloride that can be
used to make explosives.138 Amendments to the Telegraph
Act should specify the terms and limitations of civilian
law enforcement agencies’ access to telephone records, as
discussed above.
Procedural changes, including to the Evidence Act, should
require that investigating officers are conversant with computer technology and other modern methods to ensure
that challans are supported by scientific evidence. This
would help ensure that cases that go to trial are substantiated by scientific proof. Some police officials support the
admissibility of confessions before a police official only
if the accused’s lawyer is present, along other safeguards
such as allowing only senior officers, deputy superintendents and above, to extract confessions. They also advocate that the Evidence Act should allow police officers to
serve as witnesses in terrorism cases.139
Reforms to the CrPC must also address the lack of protection to witnesses, judges and prosecutors. A robust witness protection program is urgently needed. None exists
currently. Given the widespread and unchecked proliferation of arms, and the reach of criminal and terrorist networks – including collusion with corrupt local officials –
witnesses are understandably reluctant to risk their lives
by testifying in major criminal cases. Between 1 January–
30 September 2010, the prosecution failed to achieve
convictions in 306 high-profile terrorism cases in Punjab
province because witnesses retracted their testimony out
of “fear, distrust of police, social pressure and compromise between the parties through political and influential
people”, according to Punjab’s chief public prosecutor.140
An anti-terrorism prosecutor stressed: “Nobody is prepared to depose against militants in any court”.141 Along
with other measures to protect witnesses, police investigation branches could have a separate wing responsible
for witness protection.

138

Ammonium nitrate from Pakistan is reportedly smuggled
into Afghanistan, which has banned the chemical. Legislation
to regulate the use of ammonium nitrate is being considered in
parliament, according to government officials. See Mark Lander, “U.S. tries to end flow of bomb items to Afghanistan”,
New York Times, 14 November 2010.
139
The ATA had originally included such a measure. This was
struck down by the Supreme Court, which ruled that the change
should be introduced into the Evidence Act rather than through
the ATA.
140
Khalid Hassnain, “ATCs acquit about 700 for lack of evidence”, Dawn, 17 October 2010.
141
Crisis Group interview, anti-terrorism prosecutor, Islamabad,
April 2010.

Page 20

The protection of judges and public prosecutors is equally
important. In September 2010, special public prosecutors
responsible for high-profile cases in anti-terrorism courts
(ATCs) expressed concerns about their safety after receiving death threats. They complained that the government
had yet to provide them with additional security despite
several written requests.142 At present, many of these
prosecutors even use public transport to reach their antiterrorism courts. In November 2010, special public prosecutors in two Karachi ATCs said they would not prosecute members of Lashkar-e-Jhangvi, an extremist Sunni
organisation, because of repeated threats and lack of security.143 A former Sindh advocate general similarly refused
to continue prosecuting the kidnappers and murderers of
Wall Street Journal reporter Daniel Pearl.144
Jihadi outfits have intimidated and even murdered judges.
For instance, a Lahore High Court judge who acquitted a
teenaged boy of blasphemy was shot dead in his chambers
in October 1997.145 In June 2010, militants threatened an
ATC judge and his family at their home in Swat.146 The
judge was one of two in the district trying detained militants, including Tehreek-e-Nifaz-e-Shariat-e-Mohammadi
(TNSM) leader Sufi Mohammad and his sons.147 The government subsequently decided to hold Sufi Mohammad’s
trial in a fortified detention centre near Mingora rather
than the ATC.148
To counter such threats, some civilian counter-terrorism
officials have called for measures similar to ones taken by
Columbian courts in serious narco-terrorism cases. There,
courts conceal the identity of judges, and some cases are
tried not by a single judge but a panel of judges whose
identities are disguised by one-way mirrors and voice modulators. “The alternative is to have kangaroo courts like we
do now”, said a senior civilian counter-terrorism official.149

142

“Special public prosecutors receive death threats”, The Nation, 9 September 2010.
143
Asghar Azad, “Public prosecutors refuse hearings in militants’ cases”, Daily Times, 14 November 2010.
144
“Lawyer in Daniel Pearl murder case refuses to continue”,
Express Tribune, 8 November 2010. In 2002, the trial of Pearl’s
kidnappers and murderers was shifted from Karachi to Hyderabad (and heard by three different judges) due to militant threats.
See Karl Vick and Kamran Khan, “Pearl trial moving to new
site after threats”, The Washington Post, 3 May 2002.
145
See Crisis Group Report, Reforming the Judiciary in Pakistan, op. cit.
146
Rauf Klasra, “Swat anti-terrorism judge, family threatened
by Taliban”, The News, 29 June 2010.
147
The TNSM is a Swat-based militant group allied to the Afghan and Pakistani Taliban.
148
Delawar Jan, “Security fear: Sufi couldn’t be produced in
Swat court”, The News, 30 June 2010.
149
Crisis Group interview, Sindh CID official, Karachi, June
2010.

V. COUNTER-TERRORISM AND
THE RULE OF LAW
A. THE FRONTLINE FORCE
The military is still the principal counter-terrorism actor.
Having directed internal security policy especially since
the attacks of 11 September 2001, the military remains
disinclined to cede control to the elected government or
share information and resources with civilian law enforcement agencies. At the same time, the military continues to
support India and Afghanistan-oriented jihadi groups including the LeT/JD and the Jaish-e-Mohammad as well
the Taliban’s Quetta Shura and the Haqqani network. It
also maintains peace deals with some Pakistani Taliban
groups even as it targets others. This dubious distinction
between militants undermines the military-led counterterrorist policy. The military’s policy, moreover, of illegally detaining thousands of suspected militants, with no
access to lawyers, or contact with family members, arguing that they would be freed if brought to trial, undermines
the rule of law. Similar methods are used against political
opponents, particularly Balochi nationalists and activists,
as well as journalists and other civil society actors.150
There have been some, albeit limited, attempts to assert
civilian control over counter-terrorism. In December 2009,
the government established the National Counter-Terrorism
Authority (NACTA), which, however, lacks resources and
authority.151 At the provincial level, in June 2010, the
Punjab police approved plans to give the CID sole responsibility for counter-terrorism, with a highly qualified
staff and a new command structure, but it is too early to
assess results. In KPK, the federal and provincial governments are recruiting and training personnel, with international support, particularly from the U.S., for an elite
7,500-strong counter-terrorism police force.152 The focus
appears to be more on the use of force and tactical training

150

See Crisis Group Briefing, The Forgotten Conflict in Balochistan, op. cit. According to Amnesty International (AI), more
than 40 political leaders and activists have been tortured and
killed in Balochistan between July-October 2010. AI called on
the government to investigate the military and the Frontier
Corps. See “Amnesty calls for probe into Balochi killings”,
Daily Times, 27 October 2010. In 2009, most enforced disappearances were in Balochistan, according to the HRCP. “State
of human rights in 2009”, op. cit., p. 104.
151
Placing NACTA under the interior ministry, rather than directly under the prime minister, as originally conceived, critics
believe has undermined its authority and operational and fiscal
independence. Crisis Group interviews, serving and retired police officials, Islamabad, September-October 2010.
152
See Crisis Group Briefing, Pakistan: The Worsening IDP
Crisis, op. cit.; and Crisis Group Reports, Pakistan: Countering
Militancy in FATA; and Reforming Pakistan’s Police, both op. cit.

Page 21

than on enhancing the KPK police’s investigative and
case-building capacity.153 Other initiatives include the Sindh
police’s creation of a Special Protection Group, an elite
counter-terrorism force.154
While such initiatives are insufficient given the enormity
of the challenge, they are evidence of the federal and provincial governments’ desire to empower the police, who
are the frontline of the fight against violent extremism
and continue to be a primary target for jihadi groups.155

B. PARALLEL JUSTICE
1. Anti-terrorism courts
Faced with a dysfunctional criminal justice system, successive governments have established parallel courts to expedite criminal trials, including anti-terrorism, anti-narcotics
and accountability courts. The Anti-Terrorism Act (ATA)
1997 was passed by the second Nawaz Sharif government,
in response to intensifying sectarian terrorist violence. To
expedite justice, the ATA requires that anti-terrorism courts
(ATCs) conduct trials on a daily basis, to be completed
within seven days. A committee headed by a Supreme
Court justice, and comprising the law minister, prosecutor
general, law secretary and other stakeholders, meets regularly to monitor the functioning of the ATCs.
Complainants, police and prosecutors support the ATCs
because of procedural short cuts that supposedly make it
quicker and easier to gain convictions.156 However, given
the ATA’s vague definition of terrorism,157 these courts
153

These conclusions are drawn from Crisis Group interviews
with federal and provincial law enforcement officials in Peshawar, July 2010. The U.S., too, has emphasised tactical training
in assistance programs for KPK’s law enforcement agencies.
See “Quarterly progress and oversight report on the civilian assistance program in Pakistan: as of 30 September 2010”, USAID, 2010.
154
Personnel are given an additional 5,000 rupees (almost $60)
monthly above their regular salaries. Crisis Group interviews,
Sindh police officials, Karachi, June 2010.
155
On 11 November 2010, a truck bomb exploded inside the
premises of the Sindh CID in Karachi, killing at least twenty
and wounding more than 100 people.
156
Acid victims, for example, believe their attackers will get a
stricter punishment if convicted in an ATC. The law allows the
accused to challenge his/her trial by an ATC.
157
The ordinance includes within the ambit of terrorist acts “violence against a person” or to property that “create[s] a sense of
fear or insecurity in society”. The Musharraf regime’s amendments to the ATA in 2001 broadened the term to include, among
others, any act that “involves the doing of anything that causes
death”; “involves grievous violence against a person or grievous bodily injury or harm to a person”; “involves the doing of
anything that is likely to cause death or endangers a person’s
life”; “involves stoning, brick-batting or any other form of mis-

receive a vast range of criminal cases, from public disorder to assault to murder, causing the very delays and large
caseloads that they were meant to avoid. Ironically, the
Supreme Court has not applied the same demands for a
faster resolution of terrorism cases as it demands from the
normal court system. In one judgment, the Supreme Court
ruled that the ATA’s timeframe is “directory” and not
mandatory; hence anti-terrorism courts do not have to
decide cases on time. As a result, said a former special
prosecutor, “cases in the ATCs linger even for two years,
and are not quashed. Since the ATA came into force in
1997, there has been no Supreme Court order directing
ATC judges that if they do not decide a case in the time
given, action will be taken”.158
The higher judiciary has also produced confusing and contradictory interpretations of the ATA. In a January 2003
case, for example, the Supreme Court made a distinction
between “terror” and “terrorism”, the “critical difference”
being identified as “design and purpose”. Fear and insecurity would have to be the “main purpose” of such a crime,
rather than “only an unintended consequence or fall out”.
The judgment said:
Every crime, no matter what its magnitude or extent,
creates some sort of fear and insecurity in some section of the society but every felony or misdemeanour
cannot be branded or termed as terrorism. As against
that, an act of terrorism designed to create fear and insecurity in the society at large may or may not succeed
in achieving the desired effect but nonetheless it can
be accepted as nothing but terrorism because of the
object or purpose behind such act. Thus, the real test
to determine whether a particular act is terrorism or
not is the motivation, object, design or purpose behind
the act and not the consequential effect created by
such act.159
Yet in a later case of a revenge killing in a mosque, Supreme
Court Justice Abdul Hameed Dogar said that although the
motive was a “previous enmity … paramount consideration to be taken note of is the cumulative [sic] fallout” of
the offence, deeming the venue, a mosque and hence a
public place, as “sufficient to attract the provisions of section 6 of the [ATA]”. The case was transferred from an

Page 22

ordinary to an anti-terrorism court.160 Other decisions also
deemed the fallout of an act as relevant to determining
whether it was an act of terrorism, regardless of motive.
In July 2007, in a case of extortion at gunpoint in Karachi, the investigating officer submitted the case to both an
administrative judge and an ATC. In January 2008, the
ATC dismissed an application to transfer the case to an
ordinary sessions court, finding that the manner in which
the crime had been committed “created [a] sense of fear
and insecurity in [the] minds of the general public” and
therefore fell within the ATA’s ambit. Accepting the revision petition on appeal, however, the Sindh High Court
found that if such cases are to be tried in anti-terrorism
courts, “then there remains nothing for ordinary courts”.161
With no clear higher court interpretation of the ATA,
cases of all hues inundate the anti-terrorism courts. On 30
September 2010, members of the Lahore Bar Association,
who tried to barge into the Lahore High Court chief justice’s courtroom to protest an administrative decision,
were charged under the ATA.162 Children, too, some as
young as twelve years, have been arrested under the law
in violation of the Juvenile Justice System Ordinance 2000,
which abolishes the death penalty for juveniles (defined
as up to age eighteen), prohibits children from being handcuffed, fettered or subjected to corporal punishment, and
requires that juveniles be tried exclusively in juvenile courts
regardless of the offence.163 As in the regular justice system, prisoners without political or financial clout, including political opposition figures, are easily victimised.
The value of the ATCs is questionable given that they
largely rely on the same judiciary, prosecution service and
investigation agencies as regular courts. Sindh, for example, has 23 judicial districts but more than 80 district or
sessions judges who are posted to ex-cadre posts, including as ATC judges, for which they have no additional
training. Anti-terrorism prosecutors, too, are drawn from
the provincial prosecution services, with no special training or protection, and dependent on the same standard of
evidence as in all criminal investigations. Given the militants’ ample resources, they are typically pitted against

highly paid defence counsels.164 Nor do the ATCs provide
special protection to witnesses, prosecutors or judges.
As a result of intimidation and political influence, including
from the military’s intelligence agencies, militant suspects
often obtain major concessions from the courts. According to a Sindh CID official: “We busted a gang that attacked NGOs and religious minorities, mostly Christians,
and most of them are out. After five or six months, they
become eligible for bail. Terrorists get jail remissions that
people accused under NAB (National Accountability Bureau) do not get”.165 A Karachi-based counter-terrorism
official said: “The ATCs were supposed to have a low
threshold of evidence so you could send terrorists to jail.
[The system] has failed so miserably that now we are
thinking it’s better to go to the normal courts”.166
With terrorism cases taking years in courts, alleged militants who are not out on bail often plan operations from
prison, using easily available mobile phones. One Karachi-based police described prisons as the “think-tanks” of
jihadi networks because of this unchecked use of mobile
phones.167 Another claimed that prison officials are “deferential to terrorists” due either to threats or bribery.168 In
mid-2010, the Sindh government launched a scheme to
install cameras for round-the-clock surveillance of prison
inmates, along with mobile phone jamming devices.169
As of September 2010, only two of Karachi’s three antiterrorism courts were functioning.170 From 1 January 201030 September 2010, Punjab’s public prosecution department initiated proceedings in 1,324 cases under the ATA,
achieving only 199 convictions and transferring another
235 cases to normal lower courts. While overall statistics
164

“These prosecutors cannot match the kind of defence lawyers you see in ATCs”, said a senior Sindh counter-terrorism
official. Crisis Group interview, Karachi, June 2010.
165
Crisis Group interview, Karachi, June 2010.
166
Crisis Group interview, Karachi, June 2010.
167
In one prominent example, on 28 November 2008, two days
after the Mumbai attacks, Omar Sheikh, the main accused in
the kidnapping and beheading of Wall Street Journal journalist
Daniel Pearl, reportedly tried to provoke conflict between India
and Pakistan by pretending to be the Indian external affairs
minister and threatening President Asif Ali Zardari over his
mobile phone, using a UK-registered SIM from his Hyderabad
cell. Azaz Syed, “Jailed militant’s hoax calls drove India, Pakistan to brink of war”, Dawn, 26 November 2009.
168
In June 2010, four under-trial militants escaped Karachi’s
city courts reportedly with the help of police escorts. Fawad Ali
Shah, “Scathing report on UTPs’ escape hints at inside job”,
Express Tribune, 25 June 2010.
169
Crisis Group interviews, Sindh CID officials, Karachi, June
2010. See also Imran Ayub, “Plan to install cameras, phone
jammers in jails”, Dawn, 14 June 2010.
170
See “Special public prosecutors receive threats”, Nation
(Lahore), 9 September 2010.

Page 23

have not been adequately compiled, law enforcement officials, retired judges and lawyers believe that ATCs have
even lower conviction rates than regular courts.171
Trials where success could have restored a measure of
public confidence in the state’s ability to confront terrorism have not ended in convictions. In May 2010, an ATC
in Rawalpindi acquitted four people charged with involvement in the September 2008 Marriott Hotel bombing for
lack of evidence.172 The same court rejected the FIA’s request for more time before submitting the case file against
four suspects accused of involvement in Benazir Bhutto’s
assassination, held in detention for two years. In September 2010, an ATC acquitted three men accused of involvement in a May 2008 car bomb attack on the Danish
embassy in Islamabad. The prosecution claimed that it
had produced 32 witnesses, and said it would appeal the
decision.173

2. PATA and FATA
Any law enforcement efforts in PATA, including the elite
counter-terrorism force described above, will be undermined by the ambiguous, unconstitutional legal framework
established under the Nizam-e-Adl 2009, the militants’
central demand during negotiations with the military and
the KPK government from 2007-2009. Islamabad has not
repealed this parallel system despite declaring its resolve
to dismantle PATA-based militant networks.174
Under the regulation, Sharia is enforced by qazi (Sharia)
courts, run by government-appointed judicial officers
trained in Islamic law. The framework excludes many national laws, including ones that provide legal protections
to women.175 The regulation also calls for the creation of
an appellate court, the Dar-ul-Qaza, at the level of the
High Court, and a final appellate court, the Dar-ul-Darul-Qaza, at the level of the Supreme Court. KPK’s appel-

171

“Less than 5 per cent, or abysmally low”, according to a
Sindh counter-terrorism official. Crisis Group interview, Karachi, June 2010.
172
Khalid Iqbal, “Accused in Marriott Hotel suicide attack acquitted”, The News, 6 May 2010.
173
“Danish embassy bombing suspects acquitted”, Reuters, 25
September 2010.
174
The KPK government has budgeted 272 million rupees (almost $3.5 million) for the Nizam-e-Adl’s implementation at the
local level, and an additional ten million rupees ($125,000) for
the appellate courts in its 2010-2011 budget.
175
These include Muslim Family Laws Ordinance 1961, Protection of Women (Criminal Laws Amendment) 2006, and Protection Against Harassment of Women at the Workplace 2010.
See Simi Kamal, “Nizam-e Adl – Inside Out: A study of Nizam-e Adl in the light of the constitution, women’s policies and
the perceptions of the Pakistani society”, National Commission
on the Status of Women, draft report, May 2010, p. 23.

late courts are already refusing to hear appeals against
qazi court verdicts, even though the Dar-ul-Qaza and
Dar-ul-Dar-ul-Qaza have yet to be established.176 District
level courts are, therefore, applying their own interpretations of Sharia, without reference to a codified body of
law or direction from the higher judiciary. This gives district-level judicial officers unchecked authority in a parallel justice system that denies citizens constitutionally
guaranteed fundamental rights.
Even if the Dar-ul-Qaza and the Dar-ul-Dar-ul-Qaza
were established, this would not resolve the constitutional
crisis since these appellate benches would enforce a distinct body of law from that enforced by the principal
higher courts, the Peshawar High Court and the Supreme
Court. These courts would also apply Sharia, which,
without being embedded in a text, can yield extreme interpretations, as demonstrated by various judgments of
the Federal Shariat Court.177
In 2003, the Supreme Court struck down the Muttahida
Majlis-e-Amal’s Hisba bill, passed by the NWFP Assembly, to impose Sharia in the province. The judges said:
“Islamist jurists are unanimous on the point that except
for Sallat [prayer] and Zakat [alms] no other obligation
stipulated by Islam can be enforced by the state”. Therefore, a state official, in this case an ombudsman, “cannot
be empowered to determine in his discretion whether any
act is consistent with Islamic moral values and etiquettes
or not”.178 The Supreme Court should apply this precedent to the Nizam-e-Adl 2009.
Speedy justice is one of the ostensible purposes of the
Nizam-e-Adl. It imposes a four-month deadline for courts
to decide criminal cases (and six months for civil cases).
With acute criminal jurisprudence challenges in PATA,
rushed justice will likely see many more militants and
their criminal allies released than convicted. This poses

176

Akhtar Amin, “NWFP govt ‘less interested’ in implementing
shariah”, Daily Times, 8 March 2010.
177
In 1991, for example, it ruled that a blasphemy conviction
should carry a mandatory death penalty, with no possibility of
pardon. In 1992, it ruled that the Qisas and Diyat Law, which
allows a party to seek monetary compensation from another
where bodily harm has occurred, should permit senior family
members of a murder victim to pardon the killer, in return for
monetary compensation. This has practically provided legal
cover for the practice of “honour killings”. The Shariat Appellate Bench of the Supreme Court later ruled that even if such a
law was not passed, its “content and purpose could not be challenged because they formed part and parcel of Islamic common
law”. Quoted in Crisis Group Report, Reforming the Judiciary
in Pakistan, op. cit. See also “Honour killings: weak bill is evidence of weak will”, Daily Times, 23 October 2004.
178
See Crisis Group Report, Reforming the Judiciary in Pakistan, op. cit., p. 9.

Page 24

serious security risks in a region still recovering from military operations and, since July 2010, major flooding.179
Substandard policing and prosecution capacity in Malakand will likely provoke the government and, in particular,
the military to continue circumventing the trial process.
While thousands of alleged militants have been detained,
police have issued few FIRs, and the courts very few convictions – amid widespread reports of secret detentions,
mass graves and extrajudicial killings by military personnel. In a missing person hearing in the Peshawar High
Court (PHC), the (federal) deputy attorney general claimed
that the military’s intelligence agencies, which have no
legal mandate of arrest and detention, had detained about
6,000 suspected militants in KPK. One PHC judge likened suspects to “rolling stones” passed from agency to
agency.180 In July 2010, a two-member bench of the same
high court issued a notice to the ISI’s director-general,
Lieutenant General Ahmed Shuja Pasha, to clarify his
agency’s role in missing person cases – the second such
notice, after the first was ignored.181
A July 2010 Human Rights Watch report reported 238
“suspicious” killings in Swat since September 2009.182
The military has repeatedly denied involvement. In October 2010, a video showing men in military uniform lining
up and shooting unarmed civilians, presumably in Swat,
was widely circulated. Military officials argued that the
video was forged;183 Chief of Army Staff General Ashfaq
Kayani announced an internal investigation. Based on
such allegations, the U.S. has applied the Leahy Law on
Human Rights (1997) to six military units, allegedly responsible for the extrajudicial killings in Malakand.184

179

According to a Peshawar-based lawyer, a significant volume
of criminal case records was destroyed during the operations.
Crisis Group interview, Kamran Arif, Islamabad, 1 April 2010.
180
Akhtar Amin, “PHC puts military officers on notice in missing person’s case”, Daily Times, 28 September 2010.
181
Akhtar Amin, “PHC reissues notice to ISI DG in missing
person’s case”, Daily Times, 8 July 2010.
182
“Pakistan: Extrajudicial Executions by Army in Swat”, Human Rights Watch, 16 July 2010. An editorial in a major Pakistani daily called for an inquiry into such allegations, arguing:
“The security establishment cannot operate within a legal black
hole and expect to promote the rule of law. Apart from constituting poor counter-insurgency tactics, such measures are bound
to perpetuate the cycle of violence, fear and revenge that the
security establishment is meant to be bringing to an end”. “Allegations of abuse”, Dawn, 19 July 2010.
183
“Pakistan army says ‘extra-judicial killing’ video faked”, BBC
News, 1 October 2010, available at www.bbc.co.uk/news/worldsouth-asia-11455858. This website contains a link to the video.
184
Named after its principal sponsor, Senator Patrick Leahy, the
law prohibits U.S. military assistance to foreign military units
that violate human rights with impunity. Details are available
on Senator Leahy’s website: http://leahy.senate.gov.

The military has delegated a counter-insurgency role to
untrained and unaccountable tribal militias, or lashkars.
These militias are often nothing more than renegade squads
comprising former Taliban foot soldiers. The founding
head of one Peshawar-based lashkar, for example, supported the Taliban until his arrest in 2008; his lashkar
eventually refused to cooperate with the KPK police in
anti-Taliban operations, citing insufficient weapons.185 A
lashkar in KPK’s Dera Ismail Khan district was commonly referred to as the “government Taliban”.186 These
militias have been responsible for gross human rights violations, including extrajudicial killings, torching homes
and collective punishment.187
Informal and brutal justice is even more rampant in FATA,
which retains an oppressive parallel legal and administrative structure, contained in the Frontier Crimes Regulation (FCR) 1901. Each tribal agency’s administration is
presided over by a political agent who enjoys extensive
executive, judicial and fiscal powers. The FCR allows for
collective punishment and preventive detention and does
not provide the right of legal appeal. Law enforcement is
conducted by levies (militias), khassadars (tribal police)
and the Frontier Corps. The latter categorises detainees
according to a three-tier colour-coded system:

Page 25

demands. Like extrajudicial killings, these beget rather
than contain radicalisation. All major political parties and
the FATA public acknowledge the need for comprehensive political, legal and administrative reform to incorporate the tribal belt into the mainstream. In August 2009,
President Asif Ali Zardari announced a FATA reforms
package to amend some of the FCR’s arbitrary provisions.189
Major political parties and FATA-based civil society
groups welcomed the proposal. Facing resistance from
the military and FATA bureaucracy, the government has
not passed the planned reforms. In July 2010, Prime
Minister Yousaf Raza Gilani said the government would
introduce “the gift of democracy” in FATA only once
security was restored.190 The prospects of peace in FATA
will remain at best limited until the tribal agencies are
incorporated into the constitutional, political and legal
mainstream, with a functional criminal justice system.

White: minor criminals who are returned to their districts,
where their individual tribes assume responsibility for
their conduct.
Grey: foot soldiers and facilitators of militant groups, but
not their leaders and planners, who are given seven to
fourteen years imprisonment.
Black: known terrorists and planners, including those
with links to international networks, who are handed over
to the military’s intelligence agencies; they are not processed through the justice system.
“We keep a record but we do not ask [the intelligence agencies] about these cases again”, said the then-FC inspector
general, Major General Tariq Khan.188
Collective punishment and indefinite detention are customary, violating even the limited checks that the FCR

185

Ali Hazrat Bacha, “Adezai lashkar to part ways with police”,
Dawn, 25 August 2010.
186
Crisis Group Report, Pakistan: Countering Militancy in
FATA, op. cit., p. 18.
187
Crisis Group interviews, KPK residents, 2009-2010. See also
Crisis Group Report, Pakistan: Countering Militancy in FATA,
op. cit.
188
Crisis Group interview, Major General Tariq Khan, inspector general of the Frontier Corps (KPK), Peshawar, 13 July
2010. In September 2010, General Khan was promoted to Lieutenant General and appointed as Mangla Corps Commander.

189

The amendments included lifting restrictions on political
party activity; curtailing the bureaucracy’s arbitrary powers of
arrest and detention; excluding women and minors from collective responsibility under the law; establishing an appellate tribunal; and envisaging audits of the civil administration’s funds
by the auditor general. For more detail, see Crisis Group Report, Pakistan: Countering Militancy in FATA, op. cit.
190
“Only politics of reconciliation can resolve issues: PM”,
Daily Times, 26 July 2010.

that it had issued a restraint order on 3 November 2007 –
whereas it issued no such order upon the military’s October 1999 coup.

A. IMPARTIAL JUSTICE

By drawing distinctions between a military coup and the
imposition of emergency rule, the judges largely overlooked, if not justified, past actions. A former Supreme
Court justice said, “the judges have never assumed responsibility for 1999. They should have clearly stated that
they were wrong [in swearing an oath to Musharraf’s first
PCO], that 2007 was a watershed and that they were
moving forward from this point on”.193

The Supreme Court is the guardian of the constitution and
guarantor of the standard of justice. The higher judiciary
is still redefining its role after decades of validating military interventions and sanctioning legal, political and constitutional reforms that have fundamentally altered the
nature of the state, and undermined parliamentary functioning and the supremacy of the constitution. On 3 November 2007, the Supreme Court passed a restraint order
against Musharraf’s imposition of emergency rule, the
first time that it rejected rather than acquiesced in the
military’s suspension of the constitution.191 Around 60
judges, among them the Supreme Court chief justice and
three provincial high court chief justices (of the Lahore,
Karachi and Peshawar high courts) refused to swear a fresh
oath under the Provisional Constitution Order (PCO) of
2007 and were hence deposed. In March 2009, after a prolonged standoff between the government, opposition and
bar, the PPP-led government agreed to restore all deposed
judges to the bench.
Judges must admit past mistakes that have undermined
democracy. In a 31 July 2009 decision, the Supreme Court
rightly declared Musharraf’s proclamation of emergency,
and all executive orders and decisions, taken from 3 November to 15 December 2007, unconstitutional and void,
including the appointment of judges under the PCO. All
fourteen judges that heard the case had previously sworn
an oath to Musharraf’s first PCO, after the military’s October 1999 coup. Although the judgment described the
decision of other judges to swear a fresh oath to the 2007
PCO as “quite saddening”, it did not adequately address
the earlier PCO. The judgment distinguished between the
October 1999 coup, which overthrew the entire government, and the 3 November 2007 imposition of emergency,
which specifically targeted the judiciary. The latter was
“singular in nature, in that, the onslaught was on the judiciary alone. All other institutions were intact”; the action,
therefore, delivered a “serious blow” to judicial independence.192 The court based much of its argument on the fact

191

On 9 March 2007, President Musharraf tried to illegally
dismiss Chief Justice Chaudhry. In July 2007, a full bench of
the Supreme Court struck down the order as unconstitutional,
and reinstated Chaudhry.
192
Short Order of Supreme Court in Constitution Petition No.
08 and No. 09, Nadeem Ahmed and Sindh High Court Bar Association through its secretary vs. Federation of Pakistan through
Secretary, Ministry of Law and Justice, Islamabad, and others,
decided on 31 July 2009. Available at: www.supremecourt.
gov.pk/web/user_files/File/CONST.P.9OF2009.pdf.

Recent decisions and orders also prompt doubts about the
judiciary’s impartiality. Although the constitution guarantees presidential immunity from criminal proceedings, the
Supreme Court has repeatedly ordered the government to
request courts in Switzerland to reopen corruption cases
against President Zardari. In a December 2009 judgment,
the court had struck down the National Reconciliation
Ordinance (NRO), Musharraf’s political amnesty ordinance allowing the national and provincial governments
to withdraw politically motivated cases under trial that
were initiated from 1 January 1986-12 October 1999. The
court had earlier prolonged the NRO’s life by allowing
parliament to enact it into law. The judges justified striking
down the ordinance in part on the constitutional provision
introduced by Zia’s military regime, under Article 62,
requiring parliamentarians to be “sagacious, righteous,
and non-profligate and honest”.
The NRO decision has been applied selectively. While
the Supreme Court has pressed the NAB to reopen cases
against other elected and un-elected officials, possibly
including cabinet members, it has not issued similar calls
for trial courts to reopen cases against members of the
Muttahida Qaumi Movement, including its leader Altaf
Hussain, with 72 criminal cases pending in the courts, the
most of any NRO ‘beneficiary’. Such actions have caused
many in and outside the legal community to question
whether the judiciary is again allowing political motives
to inform its decisions. Criticising the NRO decision, thenHRCP chairperson Asma Jahangir argued: “Witch-hunts,
rather than the impartial administration of justice, will
keep the public amused. The norms of justice will be judged
by the level of humiliation meted out to the wrongdoers,
rather than strengthening institutions capable of protecting the rights of the people”.194

193

Confidential Crisis Group interview, retired Supreme Court
justice, June 2010.
194
Asma Jahangir, “Another aspect of the decision”, Dawn, 19
December 2010. Asma Jahangir is on the Crisis Group Board
of Trustees.

B. RESPECTING THE SEPARATION OF POWERS
The judiciary has taken some important steps to safeguard
democracy. In a 1996 case, widely known as the Mahmood
Khan Achakzai case, the court ruled that basic characteristics of the 1973 constitution, including parliamentary
democracy and federalism, embedded in Islamic provisions, cannot be subverted even by parliament. In the
Zafar Ali Shah case in 2000, the Supreme Court advanced
this doctrine by ruling that neither parliament nor the
executive could amend the constitution’s basic features of
parliamentary democracy, federalism and an independent
judiciary. In the context of successive military regimes
massively amending the constitution, and two-third majorities in rubber stamp parliaments sanctioning them,
such a doctrine could reverse this pattern – but only if
consistently applied. In the Achkazai and Shah decisions,
the court nevertheless upheld Zia’s eighth amendment
and Musharraf’s coup, respectively. Many of the judges
who heard the latter case are still on the bench, including
the current chief justice.
The eighth amendment’s Islamic provisions should in fact
be the first test of the doctrine of the basic features. “The
Federal Shariat Court exercises quasi-legislative powers.
It violates the basic structure of parliamentary democracy
enshrined in the constitution, so why is this not being looked
at?” said Abid Hassan Minto, the former SCBA president.
“In the original constitution, no mullah is placed over and
above parliament. This whole character [of the constitution] changed with the Federal Shariat Court, so which
‘basic structure’ are you talking about?”195
Upholding Musharraf’s seventeenth amendment in 2005,
the Supreme Court had stated that only parliament, and
not the superior judiciary, could strike down amendments
violating the constitution’s three basic features. The bench
was, however, willing to hear challenges, on the basis of
the basic features doctrine, to the eighteenth amendment –
which unlike the eighth and seventeenth amendments was
passed not by a military-backed rubber stamp parliament,
but unanimously by a legitimately elected assembly.196
The Supreme Court should clarify its interpretation of the
constitution’s basic features, and limit possible abuse of
the concept of “Islamic provisions” to strike down progres-

195

Crisis Group interview, Lahore, 27 May 2010.
After four months of deliberation, the judges decided not to
strike down any of the eighteenth amendment’s provisions, but,
as mentioned, ordered parliament to amend the judicial appointment procedure to include a requirement that the judicial
parliamentary committee articulate its reasons for rejecting a
judicial nominee in writing.

196

Page 27

sive reforms, as has happened in the past.197 “The basic
features doctrine should be circumscribed and not openended”, said Zain Sheikh, a constitutional expert.198 This
could prevent legislatures from writing narrow partisan
objectives into the constitution, as occurred under Generals Zia and Musharraf. It should not, however, impede
elected institutions from pursuing democratic reform.
The judiciary’s recent more proactive stance has helped
restore a measure of public confidence in the courts. But
judges must nevertheless be cautious not to overstep their
mandate. Superior court judges frequently take suo motu
action under article 184 of the constitution,199 particularly
since 2006-2007 when such cases escalated, and received
significant positive media coverage. In some instances,
the use of this constitutional authority has been both positive and necessary, as in missing person cases. Yet, the
Supreme Court has been expanding the use of these powers beyond matters of fundamental rights, including executive appointments and even, in the extreme, ordering
the Karachi government in 2007 to ban the movement of
heavy vehicles during daytime hours.200 In July 2009, the
court issued an interim order to suspend the government’s
carbon surcharge tax on petroleum products. The Lahore
High Court chief justice took suo motu notice of a rise in
the price of sugar, and in September 2009 directed the
Punjab government to keep the sale price at 40 rupees
($0.47) per kilogram.
The constitution does not confer original jurisdiction to the
provincial high courts: these benches can enforce fundamental rights only when moved by an applicant. A 1982
Supreme Court ruling reaffirmed this. Nevertheless, provincial high courts have also used suo motu powers extensively. In July 2010, the chief justice of the Peshawar
High Court stopped other judges from the court from taking suo motu notices without his permission. The Peshawar High Court Bar Association (PHCBA) welcomed the
decision, stating, “regular cases were most often delayed
due to suo motu notices”.201

197

Some opponents of the eighteenth amendment, for example,
appealed to Islamic injunctions in their petitions to strike down
parts of the reform package. Theoretically, whether any provision
violates Islamic provisions would be up to the Council of Islamic
Ideology, the Federal Shariat Court and the Supreme Court’s
Shariat bench, to decide, not the current apex court bench.
198
Crisis Group interview, Karachi, 18 June 2010.
199
Article 184(3) gives the Supreme Court the power to take
suo motu action and to pass enforceable orders on “a question
of public importance with reference to the enforcement of any
of the Fundamental Rights” conferred by the constitution.
200
See Crisis Group Report, Reforming the Judiciary in Pakistan, op. cit.
201
The PHCBA president did, however, say (incorrectly) that
every provincial high court judge had a constitutional authority

Not only can judicial activism blur the lines between judicial and executive authority, it also adds to the case backlog that the superior judiciary has resolved to reduce. Many
civil and criminal cases, as earlier mentioned, have been
pending in the high courts for years, as they have in the
lower courts. A Supreme Court advocate argues that suo
motu cases “discourage people from following due process .… Why would anyone want to spend long and arduous years in court following the procedure prescribed by
law when it is quicker to get justice if you attract media
coverage by protesting on Mall Road?”202 A former prosecutor said: “Today, a judge is waiting for his name to
come on television and print. Suo motu encourages false
cases. People feel they can get the chief justice’s attention
and they’ll have a case .… The judiciary should instead
be punishing false cases”.203
Democracy and political stability depends on the rule of
law – and vice versa. Public perceptions of a perpetual
institutional clash between the executive and the judiciary
will encumber both branches of government from consolidating the authority conferred by the restoration of
democracy. While the elected government must respect
judicial independence and directives, the judiciary, too,
must observe constitutional limits and refrain from encroaching on the executive and the parliament’s mandate.
Blurring institutional parameters will only threaten judicial independence, by encouraging other state organs to
do the same. If the judiciary is perceived as a political actor
rather than guardian of the rule of law, it will reverse the
gains it has made in regaining the public’s respect.

Page 28

VII. THE ROLE OF THE
INTERNATIONAL COMMUNITY
Pakistan’s international allies have provided limited support to the criminal justice system with mixed results. The
Asian Development Bank-funded $350-million Access to
Justice Program (AJP) concluded in mid-2008. Funded
mostly through loans, the program focused on caseload
management, justice administration, legal empowerment,
and police, prosecution and judicial reforms, including fiscal reform. While lawyers, judges and police were critical
of the heavy emphasis on infrastructure needs,204 the AJP
had some successes. Delays were reduced in the Peshawar
High Court, owing significantly to then-chief justice Mian
Shakirullah Jan’s management of AJP efforts.205 Other
achievements included reform of the Punjab motorway
police and Islamabad traffic police; the establishment of
separate prosecution services; and improvements in the
functioning of family courts. With respect to criminal justice, however, the program’s lopsided focus on basic infrastructure failed to address the urgent need to improve
evidence collection and other investigative and prosecutorial functions.
Future international programming should avoid these pitfalls by shunning the numbers game and devoting more
resources to modernising critical areas – rather than simply enlarging – the justice system. The opportunities for
reform certainly exist. A November 2008 USAID assessment on rule of law in Pakistan concluded that “reformistoriented leaders exist among most of the key institutions,
including the judiciary, the Bar, the government and the
police, who are interested in tackling key challenges within
their institutions and supporting improvements in the judiciary and the legal professions more broadly”.206 The
same appetite exists in provincial investigation agencies.
In 2009, the U.S. committed $51 million for police and
rule of law assistance, and $66.6 million in 2010, including
tactical training for law enforcement agencies in KPK, and
“investigative and case management training to provincial
and federal law enforcement agencies to increase their
ability to conduct both proactive and after-the-fact investigations leading to the arrest, prosecution, and successful
conviction of terrorist organisations operating in Paki-

to take suo motu action, and that therefore the chief justice had
no authority to impose his ban. See “PHC judges restrained
from taking suo motu notices”, Daily Times, 14 July 2010. The
constitution does not authorise a provincial high court to exercise original jurisdiction in fundamental rights cases.
202
Ashtar Ausaf Ali, “The exercise of suo motu”, Dawn, 30
March 2010. Mall Road is one of Lahore’s main roads.
203
Crisis Group interview, Karachi, June 2010.

204

The largest part of the funding included improving court facilities and purchases of judicial residences, computers, vehicles and air-conditioning. For a detailed USAID assessment of
the AJP, see “Pakistan rule of law assessment – final report”,
USAID, November 2008.
205
See Crisis Group Report, Building Judicial Independence in
Pakistan, op. cit.
206
“Pakistan rule of law assessment – final report”, op. cit., p. 31.

stan”.207 Other international programs to enhance prosecution capacity include UN Office on Drugs and Crime’s
efforts to improve police-prosecutor coordination.
In March 2010, the European Union launched an 11.5 million Euro (about $16 million) Civilian Capacity Building
for Law Enforcement (CCBLE) program, with the memorandum of understanding signed in November, to support
the government’s counter-terrorism efforts by building
NACTA’s capacity, and that of the KPK and Punjab police to handle criminal investigations by improving investigation standards, as well as strengthening prosecutorial
functions in Punjab.208 Rather than assuming too broad a
mandate by supporting NACTA, an international expert
working on the program believes it should focus instead
on regular police and prosecutors, specifically the “collection of evidence and direction of investigation”.209 The
U.S., UK and EU are also supporting the federal and Punjab government plans for forensics science laboratories.
The international community should also invest in the
smaller provinces where criminality and terrorism are just
as rampant. KPK’s law enforcement agencies in particular
urgently need modern law enforcement tools, in addition
to tactical training, to improve security. The international
community can and should provide support and training
in forensics, evidence collection, investigation, trial advocacy, and development of specialised curricula for both
investigators and prosecutors. Efforts to build a cadre of
highly trained criminologists, forensics experts and investigators, including trainers, should reach the provincial
and district levels.
The international community should send unambiguous
signals that the military’s gross human rights violations in
the name of fighting terror are unacceptable. Such tactics
as extrajudicial killings are not isolated. They form part of
a heavy-handed military approach that fails to distinguish
between civilians and combatants, and between legal and
illegal actions. This provokes exactly the kind of public
resentment that militants can exploit. The U.S. should
condition military aid, including the recently announced
$2 billion in Foreign Military Financing, on credible efforts by the military leadership to make military and intelligence officers and officials responsible for such crimes
accountable.
The U.S. should also acknowledge that the rule of law is
of a piece with Pakistan’s democratic transition. Military

207

“Quarterly progress and oversight report on the civilian assistance program in Pakistan: as of 30 September 2010”, op. cit.
208
The implementation period for this program is March 2010August 2011. Amin Ahmed, “Accord signed with EU on lawenforcement”, Dawn, 25 November 2010.
209
Crisis Group interview, Islamabad, May 2010.

Page 29

dominance of internal as well as external security policy
has created more problems than it has solved. The Enhanced Partnership with Pakistan Act 2009, which U.S.
President Barack Obama signed into law in October
2009, provides $7.5 billion over five years to strengthen
civilian institutions, including the police. Its underlying
purpose is to broaden U.S. engagement with Pakistan
beyond a narrow military partnership. The Obama administration should implement it in letter and spirit, not
only by engaging more with civilian institutions, but by
supporting those institutions to wrest control over vital
policy areas that the military still rigidly guards.

VIII. CONCLUSION
The state largely derives its authority from the public’s
confidence in police to maintain security, and the courts
to deliver justice. Facing severe challenges to internal
stability and to the democratic transition, the federal and
provincial governments cannot afford to defer comprehensive judicial reforms. The eighteenth amendment has
demonstrated parliament’s ability and will to pass extensive democratic reforms. The two major parties, the
PPP and the PML-N, should not become complacent in
the wake of its passage, but should instead capitalise on
this momentum to meaningfully reform the justice sector,
including substantive and long-term investment in infrastructure, technology and personnel.
The criminal justice system will be more effective if
judges, prosecutors and police are proactive in enforcing
the letter and spirit of the law. Indeed the courts’ legitimacy,
too, depends not just on preventing executive overreach
but also on a robust criminal justice system. The superior
judiciary and the National Judicial Policy-Making Committee should reconsider the NJP and assign as much priority to strengthening trial processes as to clearing backlogs. Legal short cuts are tempting but counter-productive.
The concept of swift justice will no doubt continue to appeal to major segments of the population so long as the
courts fail to deliver. Policymakers and judges should not
give in to populist fixes that will only limit the justice
system’s capacity to enforce the law.
Much more attention is needed on the pre-trial phase, so
that strong cases are presented in court. Successful convictions in the past are attributable to individuals with
knowledge of criminal law and the standards of evidence
leading investigations. This should become the norm.
Moreover, modern investigation tools should not be the
preserve of special police forces – or indeed the military’s
intelligence agencies – but should be basic tools for the
investigation branches.
Any effort to enforce the law will be unsustainable without consolidating a still fragile democratic transition. The
military’s constitutional and legal distortions have undermined domestic stability and weakened public confidence
in the law. They have also disenfranchised major segments
of the population, encouraging vigilantism against minorities and creating space for extremists to assert themselves. The challenge for all three branches of government
is to put the criminal genie back in the bottle. Clashes between the judiciary and the elected government could reverse the gains made by the political parties and broader
legal community when they cooperated to oust the previous military regime. Pakistan’s democratic institutions
should reinforce each other’s efforts to establish constitu-

Page 30

tional rule and to counter any future attempts to rewrite
the law for short-term partisan objectives.

A minority Sunni sect, declared non-Muslims by the second constitutional amendment.

ATA

Anti-Terrorism Act, 1997

ATC

Anti-terrorism court

Challan

Case brief

CID

Criminal Investigation Department

CPLC

Citizen-Police Liaison Committee

CRO

Criminal Record Office

CrPC

Criminal Procedure Code

Eighteenth Amendment

A constitutional amendment package passed unanimously by both chambers of parliament in
April 2010, amending over 100 provisions of the constitution to repeal the Musharraf-era
Seventeenth Amendment and restore parliamentary sovereignty and strengthen civilian
institutions.

Eighth Amendment

A broad constitutional amendment package, passed in November 1985, validating reforms by
Zia-ul-Haq’s military regime, including discriminatory Islamic laws, and measures to centralise
power with the military and civilian proxies.

A set of four Ordinances passed by Zia-ul-Haq’s military regime on 16 February 1979, prescribing
punishments in accordance with orthodox Islamic law, including amputation of limbs, flogging,
stoning and other forms of the death penalty for crimes ranging from theft, adultery and
fornication to consumption of liquor. This body of law remains in force.

Legal Framework Order, a set of political and constitutional reforms by the Musharraf military
regime to centralise power with the military and its civilian allies.

MMA

Muttahida Majlis-e-Amal, an alliance of six major religio-political parties dominated by the JUI-F
and JI. During Pervez Musharraf’s military regime, it formed the NWFP provincial government
and was the major partner in the pro-Musharraf ruling coalition in Balochistan.

National Reconciliation Order, promulgated by then-President Pervez Musharraf in October 2007,
granting amnesty to politicians and officials for politically motivated charges. The Supreme Court
struck it down as unconstitutional in December 2009.

PATA

Provincially Administered Tribal Areas, comprising Malakand division, including the districts of
Buner, Chitral, Lower Dir, Upper Dir, Malakand, Shangla and Swat, as well as the Tribal Area
adjoining Mansera district and the former state of Amb, administered since 1975 under a separate
criminal and civil code from the rest of NWFP.

PCO

Provisional Constitution Order

PML

Pakistan Muslim League, the founder party of Pakistan, originally called the All India Muslim
League. Many politicians claim to be leaders of the “real” Muslim League in Pakistan and have
their own factions. Former prime minister Nawaz Sharif heads the Muslim League’s largest
grouping, known as PML(N). PML (Quaid-e-Azam group), a pro-Musharraf party, formed the
central government during military rule from 2002-2007.

PPP

The Pakistan Peoples Party, founded by Zulfikar Ali Bhutto in 1967 with a socialist, egalitarian
agenda. Since Benazir Bhutto’s assassination in December 2007, the party is headed by her
widower, President Asif Ali Zardari, and currently heads the coalition government in the centre.

PPC

Pakistan Penal Code

Qanun-e-Shahadat

The Evidence Act, as amended by General Zia-ul-Haq’s military regime in 1984, whose
amendments remain in force. Commonly still referred to as the Evidence Act.

Qazi court

Sharia (Islamic law) court

Qisas and Diyat

Islamic laws on murder

Seventeenth Amendment

A constitutional amendment package passed by the Musharraf-backed parliament in December
2003 to centralise power with the military and its civilian allies. Repealed in April 2010 by the
Eighteenth Amendment.

The International Crisis Group (Crisis Group) is an independent, non-profit, non-governmental organisation, with some
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Nairobi, Pristina and Tbilisi) and has local field representation in fourteen additional locations (Baku, Bangkok,
Beirut, Bujumbura, Damascus, Dili, Jerusalem, Kabul, Kathmandu, Kinshasa, Port-au-Prince, Pretoria, Sarajevo and
Seoul). Crisis Group currently covers some 60 areas of
actual or potential conflict across four continents. In Africa,
this includes Burundi, Cameroon, Central African Republic,
Chad, Côte d’Ivoire, Democratic Republic of the Congo,
Eritrea, Ethiopia, Guinea, Guinea-Bissau, Kenya, Liberia,
Madagascar, Nigeria, Rwanda, Sierra Leone, Somalia, Sudan,
Uganda and Zimbabwe; in Asia, Afghanistan, Bangladesh,

North East Asia
After the North Korean Nuclear Breakthrough: Compliance or Confrontation?,
Asia Briefing N°62, 30 April 2007 (also
available in Korean and Russian).
North Korea-Russia Relations: A Strained
Friendship, Asia Briefing N°71, 4
December 2007 (also available in
Russian).
South Korea’s Election: What to Expect
from President Lee, Asia Briefing N°73,
21 December 2007.
China’s Thirst for Oil, Asia Report N°153,
9 June 2008 (also available in Chinese).
South Korea’s Elections: A Shift to the
Right, Asia Briefing N°77, 30 June 2008.
North Korea’s Missile Launch: The Risks
of Overreaction, Asia Briefing N°91,
31 March 2009.
China’s Growing Role in UN Peacekeeping, Asia Report N°166, 17 April
2009 (also available in Chinese).

South East Asia
Jihadism in Indonesia: Poso on the Edge,
Asia Report N°127, 24 January 2007
(also available in Indonesian).
Southern Thailand: The Impact of the
Coup, Asia Report N°129, 15 March
2007 (also available in Thai).
Indonesia: How GAM Won in Aceh, Asia
Briefing N°61, 22 March 2007.
Indonesia: Jemaah Islamiyah’s Current
Status, Asia Briefing N°63, 3 May 2007.

PRESIDENT’S COUNCIL
Crisis Group’s President’s Council is a distinguished group of major individual and corporate donors providing
essential support, time and expertise to Crisis Group in delivering its core mission.
Canaccord Adams Limited
Neil & Sandy DeFeo
Fares I. Fares

Frank Holmes
Steve Killelea
George Landegger

Statoil ASA
Harry Pokrant
Ian Telfer

Mala Gaonkar
Alan Griffiths

Ford Nicholson

Neil Woodyer

INTERNATIONAL ADVISORY COUNCIL
Crisis Group’s International Advisory Council comprises significant individual and corporate donors who contribute
their advice and experience to Crisis Group on a regular basis.
Rita E. Hauser
Co-Chair

SENIOR ADVISERS
Crisis Group’s Senior Advisers are former Board Members who maintain an association with Crisis Group, and whose advice
and support are called on from time to time (to the extent consistent with any other office they may be holding at the time).
Martti Ahtisaari
Chairman Emeritus